Fordham International Law Journal
Volume 34, Issue 6
2011
Article 2
The Alien Tort Claims Act and Corporate
Liability: A Threat to the United States’
International Relations
Theresa (Maxi) Adamski∗
∗
c
Copyright 2011
by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
The Alien Tort Claims Act and Corporate
Liability: A Threat to the United States’
International Relations
Theresa (Maxi) Adamski
Abstract
This Note examines the newly-created circuit split between the Second Circuit and the Ninth,
and Eleventh Circuits regarding corporate liability. Part I introduces the ATCA, chronicling its
transformation from a short provision in the Judiciary Act of 1789 to the weapon of choice employed against international corporations for alleged human rights violations. Part II focuses on
the newly-created circuit split, identifying important case law and the current standing of ATCA
human rights corporate liability in all three circuits. Emphasis is placed upon the international
implications of and reactions to these decisions. Finally, Part III concentrates on the international
implications of the split and advances the argument that the Second Circuit correctly decided Kiobel in light of the ATCA’s purpose and the potential impact that continued ATCA litigation poses
to US external relations.
NOTES
THE ALIEN TORT CLAIMS ACT AND
CORPORATE LIABILITY: A THREAT TO THE
UNITED STATES' INTERNATIONAL RELATIONS
Theresa (Maxi) Adanski*
........ 1503
..........................
INTRODUCTION
...... 1505
I.THE BEGINNINGS OF THE ATCA.............
A. The Judiciary Act of 1789 and the ATCA: "[L] egal
Lohengrin ... no one seems to know whence it
1506
came."....................................
B. Fildrtigav. Pefia-Irala,and Sosa v. Alvarez-Machain:
Awakening the ATCA from Its 200-Year Slumber.... 1512
C. Doe v. Unocal: The Multinational Corporation
................. 1516
Becomes an ATCA Defendant.
II.THE SECOND CIRCUIT VS. THE NINTH AND
ELEVENTH CIRCUITS: A DIFFERENCE IN OPINION 1521
A. Kiobel: The Second Circuit Decides Corporations
1523
Are Not Liable Under the ATCA ... ................
B. The Ninth and Eleventh Circuits: US Courtroom
Doors Are Still Open to Corporate Liability under
1532
.................................
the ATCA.
III.THE SECOND CIRCUIT IS CORRECT: WHY
MULTINATIONAL CORPORATIONS SHOULD NOT
.................. 1 537
BE LIABLE UNDER THE ATCA.
A. The Threat of Misinterpreting the ATCA................. 1538
B. The ATCA: An Economic Nightmare...........1 540
C.
The Time Is Ripe for US Supreme Court Review .... 1541
CONCLUSION
.....................................
1502
1542
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
1503
INTRODUCTION
An obscure sentence, penned by the first US Congress in
1789, has found its way to the forefront of human rights
litigation, and is being utilized against multinational
corporations.' The statute, the Alien Tort Claims Act ("ATCA"),
wielded by plaintiffs who have suffered human rights violations,
has managed to pull multinational corporate giants, such as
Coca-Cola Company, Yahoo!, Unocal, and ExxonMobil into US
courts for alleged human rights violations committed on non-US
soil with little nexus to the United States.2 While human rights
*J.D. Candidate, 2012, Fordham University School of Law; B.A. in History and
German, 2008, Georgetown University. The author would like to thank her family and
friends for their continuous support, Fordham Law Adjunct Professor Harold Moore for
his guidance, and Amy E. Abbandondelo, the Fordham International Law Journal
Writing & Research Editor, lor her constant encouragement.
1. See PETER HENNER, HUMAN RIGHTS AND THE ALIEN TORT STATUTE: LAW,
HISTORY AND ANALYSIS ix (2009) (contending that in the last thirty years the Alien Tort
Claims Act ("ATCA") has developed into a "weapon in the arsenal of human rights
advocates" employed against multinational corporations); see also Theresa Harris, Settling
a Corporate Accountability Lawsuit Without Sacrificing Human Rights. Wang Xiaoning v.
Yahoo!, 15 HUM. RTS. BRIEF 10-II (2008) (observing that ATCA actions are a form of
"impact litigation" employed by activists to influence policy and legislative change,
especially if the action does not have public support); infra Part II (chronicling ATCA
activity in the Second, Ninth, and Eleventh Circuits).
2. See 28 U.S.C. § 1350 (2006); Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th
Cir. 2009); Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001); Doc v. Exxon Mobil
Corp., 573 F. Supp. 2d 16 (D.D.C. 2008); Wang Xiaoning v. Yahoo!, Inc., No. 07 Civ.
02151 (N.D. Cal. Nov. 9, 2007) (entailing an ATCA action brought against the internet
provider Yahoo! by Chinese political prisoners, which was ultimately settled
confidentially); see also Harris, supra note 1, at 10 (discussing the settlement agreement
in Wang Xiaoning v. Yahoo.); John B. Bellinger, Will Federal Court's Kiobel Ruling End
Second Wave of Alien Tort Statute Suits?, LEGAL BACKGROUNDER, Nov. 12, 2010, at 2,
http://www.wlf.org/Upload/legalstudics/legalbackgrounder/ 1-12-10ellinger
LegalBackgrounder.pdf [hereinafter Bellinger, Second Wave] (contending that most
corporations conducting business in developing nations have encountered ATCA
litigation); John B. Bellinger, Shortening the Long Arm of the Law, INT'L HERALD TRII.,
Oct. 9, 2010, at 8 [hereinafter Bellinger, Shortening the Long Arm ofLaw] (noting that the
countries and regions impacted by ATCA litigation have included Burma, China,
Colombia, Gaza, Indonesia, Nigeria, and South Africa); Melissa Maleske, Court Decision
Could Block Alien Tort Claims Against Corporations, INSIDE COUNS., Nov. I, 2010,
http://www.insidecounsel.com/Issues/2010/November-2010/Pages/Court-DecisionCould-Block-Alicn-Tort-Statute-Claims-Against-Corporations.aspx (quoting a corporate
attorney who classified ATCA litigation as a "cottage industry" after favorable rulings for
human rights plaintiffs in the Second, Ninth, and Eleventh Circuits); JENNIFER K. ELSEA,
CONG. RESEARCH SERV., RL 32118, THE ALIEN TORT STATUTE: LEGISIATIVE HISTORY
1504 FORDHAMINTERNATIONAL LAWJOURNAL
[Vol. 34:1502
plaintiffs have embraced the ATCA with increasing frequency
and enthusiasm, businesses are "sounding the alarm" and
painting nightmare scenarios of high punitive damages, negative
economic impact, and international relations consequences. 3
ATCA litigation has been concentrated in the US Courts of
Appeals for the Second, Ninth, and Eleventh Circuits. 4 Initially,
all three circuits, applying different standards of proof,
recognized the possibility of a multinational corporate
defendant's liability for violations of a plaintiffs human rights.5
EXECUTIVE BRANCH VIEws 2 (2003) (recognizing that the ATCA is also referred to as the
Alien Tort Statute ("ATS")); GEORGE P. FLETCHER, TORT LIABILITY FOR HUMAN RIGHTS
ABUSES 133 (2008) (commenting that because the Supreme Court referred to the ATCA
as the ATS, many scholars and courts now refer to it as the ATS); HENNER, supra note 1,
at I (noting that the ATCA was adopted in the United States' infancy during the first
congressional session).
3. See GARY C. HUFBAUER & NICHOLAS K. MITROKOSTAS, AWAKENING MONSTER:
THE ALIEN TORT STATUTE OF 1789 7 (2003) (remarking that ATCA plaintills have
claimed damages in excess of US$200 billion against over fifty corporate defendants for
their actions in Africa, Asia, Latin America, and the Middle East); Jordan W. Cowman,
The Alien Tort Statute: Corporate Social Responsibility Takes on a New Meaning,
METROPOLITAN CORP. COUNS., July 1, 2009, at 30 (stating that companies who conduct
business in developing nations are ideal defendants for an ATCA claim); jenna Greene,
GatheringStorm: Suits that Claim Overseas Abuse Are Putting U.S. Executives on Alert and
Their Lawyers on Call, LEGAL TIMES, July 21, 2003, at I (pointing out that businesses
throughout the country are "sounding the alarm" in the face of the modern incarnation
of the ATCA, now being used to hold government officials and companies liable
worldwide); Maleske, supra note 2 (observing that the United States is the only nation
that opens its courtroom doors to torts occurring abroad involving non-US actors and,
further, that the US Department of State views ATCA claims as a possible source of
friction disturbing US international relations); see also Bellinger, Second Wave, supra note
2, at 3 (asserting that ATCA litigation is not only a nuisance for corporations, but also
troublesome for US diplomatic relations as evidenced by complaints that the US
Department of State has lielded from other countries, the European Union, and trade
organizations arguing that US courts exercising jurisdiction over non-US entities is a
violation of customary international law when the events at issue have no nexus to the
United States); CENTER FOR CONSTITUTIONAL RIGHTS ET AL., UNIVERSAL PERIODIC
REVIEW UNITED STATES OF AMERICA: STAKEHOLDER SUBMISSION ON UNITED STATES
OBLIGATIONS TO RESPECT, PROTECT AND REMEDY HUMAN RIGHTS IN THE CONTEXT OF
BUSINESS ACTIVITIES 3-4 (2010), available at http://www.earthrights.org/sites/default/
files/documents/escrnet-upr-april-19-2010.pdf (explaining that the executive branch of
the US federal government has expressed significant opposition to corporate ATCA
liability, arguing that such litigation harms US external relations and US business
interests while also undermining US national security).
4. See Maleske, supra note 2 (noting that the Second, Ninth, and Eleventh Circuits
are popular forums for ATCA litigation); see also supra note 2 and accompanying text;
infra Part II (outlining ATCA litigation in the three circuits).
5. See infra Part 11 and accompanying text (discussing the Second, Ninth, and
Eleventh Circuits' treatment ofATCA human rights litigation).
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
1505
In 2010, however, the Second Circuit in Kiobel v. Royal Dutch
Petroleum Company ruled that human rights plaintiffs could no
longer bring claims of corporate liability under the ATCA,
thereby closing the circuit's door to such cases.6
This Note examines the newly-created circuit split between
the Second Circuit and the Ninth, and Eleventh Circuits
regarding corporate liability. Part I introduces the ATCA,
chronicling its transformation from a short provision in the
Judiciary Act of 1789 to the weapon of choice employed against
international corporations for alleged human rights violations.
Part II focuses on the newly-created circuit split, identifying
important case law and the current standing of ATCA human
rights corporate liability in all three circuits. Emphasis is placed
upon the international implications of and reactions to these
decisions. Finally, Part III concentrates on the international
implications of the split and advances the argument that the
Second Circuit correctly decided Kiobel in light of the ATCA's
purpose and the potential impact that continued ATCA litigation
poses to US external relations.
I.
THE BEGINNINGS OF THE A TCA
Section A chronicles the birth of the ATCA, emphasizing
two important international incidents that arguably sparked the
enactment of the ATCA: the 1784 Marbois affair and the 1787
violation of Dutch Minister Mr. Van Berckel's immunity. Section
B first considers the 1980 ATCA case, Fildrtigav. Pefia-Irala.7 This
Second Circuit decision is credited with awakening the ATCA
and distinguishing it as a contemporary tool able to implement
international law and human rights standardsA The discussion
then turns to the 2004 Ninth Circuit case, Sosa v. Alvarez-
6. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d Ill, 120 (2d Cir. 2010).
7. Filirtiga v. leia-Irala, 630 F.2d 876 (2d Cir. 1980).
8. See HENNER, supra note 1, at 49 (describing the ATCA as a "modern weapon"
used to protect against human rights abuses); see also Fildrtiga, 630 F.2d 876; Katherine
Gallagher, Civil Litigation and TransnationalBusiness: An Alien Tort Statute Primer, 8 J.
INT'L CRIM.JUST. 745, 748 (2010) (arguing that the Fildrtigadecision marked the start of
the "modern era ol human rights litigation in the United States"); Ralph G. Steinhardt,
The Internationalizationof Domestic Law, in THE ALIEN TORT CLAIMS AcT: AN ANALYTICAl.
ANTHOLOGY 3, 50 (Ralph G. Steinhardt & Anthony D'Amato eds., 1999) (commenting
that ATCA case law before the Fildrtigadecision did not favor human rights plaintiffs).
1506 FORDHAMINTERNATIONAL LAWJOURNAL
[Vol. 34:1502
Machain.9 This case marks the first time that the US Supreme
Court considered the contemporary ATCA and, although only in
a footnote, arguably recognized the potential of corporate
liability.10 Finally, Section C addresses the shift to the
multinational corporate defendant, focusing on the pinnacle
case, Doe v. Unocal Corporation, in which Burmese villagers
brought charges for human rights violations against Unocal."
A.
The JudiciaryAct of 1789 and the ATCA: "[Liegal
Lohengrin . .. no one seems to know whence it came. "12
The ATCA consists of a single sentence adopted during the
first session of the US Congress in 1789.'3 As a young
government, the United States was charged, among other things,
with the formation of a judiciary act that would create the new
federal court system.' 4 Essential to this system was the ability of
9. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
10. Id. at 732 n.20 ("A related consideration is whether international law extends
the scope of liability for a violation of a given norm to the perpetrator being sued, if the
defendant is a private actor such as a corporation or individual."); Rachel Chambers,
The Unocal Settlement: Implicationsfor the Developing Law on Corporate Complicity in Human
Rights Abuses, 13 HUM. RTS. BRIEF, Winter 2005, at 15 (recognizing that the Sosa case was
the first time that the US Supreme Court addressed the modern day ATCA and opened
the door to litigation against corporations); Donald J. Kochan, Sovereignty and the
American Courts at the Cocktail Party of InternationalLaw: The Dangers of Domestic judicial
Invocations of Foreign and International Law, 29 FORDHAM INT'L L.J. 507, 534 (2006)
(indicating that in Sosa, the Supreme Court made important assertions concerning its
understanding of the ATCA).
11. Doe v. Unocal Corp., 248 F.3d 915, 920-21 (9th Cir. 2001); see HENNER, supra
note 1, at 76 (noting that Doe v. Unocal Corporationis significant in ATCA case law not
only because it is one of the first corporate ATCA cases, but it also reportedly settled for
over US$30 million); Chambers, supra note 10, at 14 (contending that many view the
Unocal litigation as the first case successfully brought against a corporation for alleged
human rights violations); Kochan, supra note 10, at 532 (discussing that the Doe v. Unocal
decision marked the start of a wave of ATCA cases filed against multinational
corporations); see also JEFFREY DAVIS, JUSTICE ACROSS BORDERS: THE STRUGGLE FOR
HUMAN RIGHTS IN U.S. COURTS 212 (2008) (pointing out the Unocal case's impact on
ATCA litigation).
12. HT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975).
13. 28 U.S.C. § 1350 (2006) ("The district courts shall have original jurisdiction of
any civil action by an alien for a tort only, committed in violation of the law of nations or
a treaty of the United States."); see also MICHAEL KOEBELE, CORPORATE RESPONSIBILITY
UNDER THE ALIEN TORT STATUTE: ENFORCEMENT OF INTERNATIONAL LAW THROUGH US
TORTS lAW 3 (2009) (explaining that the Judiciary Act of 1789, Congress' first statute,
formed the federal court system).
14. See HENNER, supra note 1, at 28 (explaining that one of the first Congress'
initial responsibilities was the institution of a federal judiciary); see also ELSEA, supra note
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
1507
non-US citizens to bring claims in domestic courts against US
citizens.' 5 The ATCA was one of four sections in the Judiciary Act
of 1789 that addressed the right of an alien to commence
litigation in US courts.' 6 Although limited records exist
concerning the legislative history of the ATCA, most historians
accept that the basis for the ATCA's enactment was the Framers'
intention to comply with the law of nations. 7 As a new nation,
the United States sought to establish itself and win the respect of
its international counterparts. This was especially important on
the heels of two international incidents, which arguably played a
role in spurring the adoption of the ATCA.' 8
13, at 4 (recounting that the Judiciary Act of 1789, also called the Act of September 24,
1789, created the US courts pursuant to Article III of the US Constitution). See generally
ELSEA, supra note 13, at 4-6 (observing that the ATCA was initially codified in the ninth
clause of theJudiciary Act, which was amended in 1878, 1911, and finally in 1948).
15. See FLETCHER, supra note 2, at 18 (explaining that federal jurisdiction for torts
allegedly violating the law of nations is only available to non-US citizens); HENNER, supra
note 1, at 30 (discussing the significance of providing non-US citizens the opportunity to
pursue claims against US-citizens for violations of international law and the law of
nations).
16. See HENNER, supra note 1, at 31-33 (noting that four separate sections of the
judiciary Act of 1789, specifically the ninth, eleventh, twelfth, and thirteenth, addressed
the rights of aliens to litigate in the United States); BETH STEPHENS & MICHAEL RATNER,
INTERNATIONAL. HUMAN RIGHTS LITIGATION IN U.S. COURTS 15 (1996) (clarifying that
the judiciary Act of 1789 was, in part, intended to ensure that federal courts had
jurisdiction over a non-US citizen's civil claims); see also BIACK'S LAW DICTIONARY 84
(9th ed. 2009) ("In the United States, an alien is a person who was born outside the
jurisdiction of the United States, who is subject to some foreign government, and who
has not been naturalized tinder U.S. law.").
17. See, e.g., HUFBAUER & MITROKOSTAS, supra note 3, at 3 (articulating that the
ATCA was meant to demonstrate to the European powers the United States'
commitment to enforcing the law of nations and protecting non-US citizens such as
diplomats and merchants); KOEBEI.E, supra note 13, at 3 (indicating that the ATCA's
purpose is unclear due to the lack of legislative history surrounding its enactment);
STEPHENS & RATNER, supra note 16, at 14 (opining that the framers' respect for the law
of nations speaks to the enactment of the ATCA); William R. Casto, The Federal Court's
Protectivejurisdiction over Torts Committed in Violation of the Laws of Nations, in THE ALIEN
TORT ClAIMS ACT: AN ANAI.YrICAL ANTHOLOGY, supra note 8, at 142: (explaining that
little legislative history is available regarding the ATCA, as members of the first Congress
may not have considered it controversial).
18. See HENNER, supra note 1, at 29 (arguing that the Federalist Papers, reports,
and journals concerning the judiciary Act recognized the need for the United States, as
a young nation, to show respect for international law); see also HUFBAUER &
MITROKOSTAS, supra note 3, at 3 (outlining that the ATCA was enacted in reaction to
two separate assaults on non-US diplomats on US soil); STEINHARDT, supra note 8, at 4
(noting that, as a new player in the international arena, the United States needed to
demonstrate its dedication to enforcing the law of nations); STEPHENS & RATNER, supra
note 16, at 14-15 (positing that the ATCA was enacted in order to save the federal
1508 FORDHAMINTERNATIONAL LAWJOURNAL
[Vol. 34:1502
The first of these two events was the 1784 Marbois affair.
The incident involved a clash between Chevalier de Longchamps,
a former French military officer, who attacked Francis Marbois,
the French consul, on a Philadelphia, Pennsylvania, street.'9 The
episode was considered not only a serious crime but also a
blatant violation of the law of nations, which mandates the
protection of diplomats.11 US federal law, however, provided little
recourse, and the Continental Congress had no option but to
defer to the Commonwealth of Pennsylvania to address and
remedy the situation.2 1
The second incident occurred in 1787, when New York
police officers entered the home of a Dutch minister in order to
arrest a domestic servant, violating the minister's diplomatic
immunity.2 2 Again, due to the inadequacies of US federal law, the
Continental Congress could only ask the state of New York to
address the offense.23 The Mayor of New York complied with
Congress' wishes to prosecute, but expressed concern to the US
Secretary of State, John Jay, that the US Congress and the New
government from embarrassment in light of a series of torts against international
diplomats committed in the United States).
19. See FLETCHER, supra note 2, at 10 (describing the Marbois affair, in which
Francois Marbois, secretary of the French legation was assaulted by a Frenchman,
Chevalier de Longchamps); HENNER, supra note 1, at 34 (chronicling the 1784 assault of
Francis Marbois); see also DAVIS, supra note 11, at 28 (acknowledging that, to the
embarrassment of the United States, France expressed strong disappointment in the
Continental Congress' response to the Marbois attack).
20. See Respublica v. De Longchamps, I U.S. (1 Dall.) III, 116 (Pa. 1784) ("The
person of a public minister is sacred and inviolable. Whoever offers any violence to him,
not only affronts the Sovereign he represents, but also hurts the common safety and well
being of nations; he is guilty of a crime against the whole world."); see also HENNER,
supra note 1, at 34 (affirming that diplomats are protected under the law of nations).
21. See FLETCHER, supra note 2, at 10 (explaining that the Continental Congress,
unable to directly prosecute the incident due to a lack of power, could only request that
Pennsylvania charge De Longchamps); HENNER, supra note 1, at 34 (noting that the US
Articles of Confederation did not provide for relief under US federal law).
22. See generally FLETCHER, supra note 2, at If (chronicling the second incident,
which involved a violation of the Dutch ambassador's diplomatic immunity in New York,
an incident that emphasized to the constitutional drafters the importance of preserving
relations with the international community); HENNER, supra note 1, at 35 (recounting
the details of the 1787 incident involving New York police and the Dutch Minister Van
Berckel).
23. See FLETCHER, supra note 2, at II (explaining that the Continental Congress
could not prosecute the offender, but had to rely upon New York authorities, who
eventually elected to bring charges); HENNER, supra note 1, at 35 (noting that only state
authorities had the ability to hold parties liable for violations committed against
ambassadors).
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
1509
York legislature had yet to address the "breach of privileges of
ambassadors." 2 4 Moreover, this crime fell under the law of
nations, which was not yet a part of US law.2 5 Both episodes
emphasized to the Continental Congress the importance of
federal jurisdiction over incidents involving aliens in order to
avoid international embarrassment, protect national security, and
preserve international relations. 26
An additional theory suggests that the enactment of the
ATCA by the first Congress reflected the understanding that, as a
nation, the United States was obligated to uphold and
incorporate the law of nations into American jurisprudence.2 7
The ATCA has been considered the first Congress' response to
the conflict between federal law, international law, the rights of
aliens on US soil, and international relations.28
Just as the impetus behind the ATCA has been questioned
and extensively analyzed, there has also been much speculation
24. See HENNER, supra note 1, at 35 (quoting the Mayor of New York's letter to US
Secretary of State John jay).
25. See HENNER, supra note 1, at 35 (clarifying that although the Mayor of New York
ordered the arrest of the offending ofiicer, he still had certain reservations,
commenting,
I need not remind you, sir, that neither Congress nor our internal legislature
have passed any act respecting a breach of the privileges of ambassadors; so
that the degree and nature of punishment depend on the common law, the
crime on the law of nations, which is a breach of the common law.)
26. See STEPHENS & RATNER, supra note 16, at 15 (explaining that the purpose of
the ATCA was to grant jurisdiction to federal courts over torts committed against nonUS citizens, in part to preserve the US government's reputation); see also FLETCHER,
supra note 13, at 10 (finding that the these early incidents illustrated to the Continental
Congress the potential risks, including a negative impact on the United States' external
relations, associated with violations committed against non-US citizens); HUFBAUER &
MITROKOSTAS, supra note 3, at 3-6 (suggesting that the United States was concerned
with exhibiting respect for international principles and ideals); Curtis A. Bradley & Jack
L. Goldsmith, Op-Ed., Rights Case Gone Wrong; A Ruling Imperis Firms and U.S. Diplomacy,
WASH. POST, Apr. 19, 2009, at A19 (suggesting that it is preferable that federal courts, as
opposed to state courts, handle diplomatic matters in order to ensure impartial
adjudication).
27. See STEPHENS & RATNER, supra note 16, at 17 (observing that the ATCA was part
of a larger plan to implement international law locally and enforce globally-recognized
obligations); see also HENNER, supra note I, at 36 (stating that the ATCA was initially
meant to apply only to a small number of torts, specifically those recognized as
offending the law of nations in the eighteenth century).
28. See generally ELSEA, supra note 13, at 8 (contending that the ATCA reflects the
Framers' desire to grant the US federal government control over international affairs
and deter struggles stemming from US dealings with aliens).
1510 FORDHAMINTERAATIONALLAWJOURNAL
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about the statute's meaning and purpose.29 The language of the
ATCA is simple and imprecise.30 It is comprised of three key
phrases: "by an alien," "a tort only," and "in violation of the law
of nations or a treaty of the United States.""1 A brief analysis of
each phrase provides further insight into the statute's
application.
The plaintiff in an ATCA case must be an alien. 2
Additionally, the ATCA does not require that the plaintiff be
present in the United States or that the tort occur within the
territory of the United States. 3 The statute, however, does not
offer any such guidelines as to the defendants who fall within its
scope.3 4 The categories of accepted ATCA defendants have
evolved and developed since 1789.11 The defendant can be either
an individual or group, and may be of any nationality, including
American.3 6 Defendants have also included state actors and
29. See STEPHENS & RATNER, supra note 16, at 49 (describing the ATCA as a vague
and unique statute that gives little indication or direction as to its application and the
circumstances under which it is triggered); see also HENNER, supra note 1, at 2
(commenting that despite the statute's length, it is extremely complex); cf HUFBAUER &
MITROKOSTAS, supra note 3, at 46 (pointing out that the ATCA is a unique creation and
that no other nation has a similar statute).
30. See supra note 29 and accompanying text (pointing out that the ATCA is
surrounded by uncertainty).
31. 28 U.S.C. § 1350 (2006). See generally FLETCHER, supra note 2, at 18-22
(describing the basic elements of the ATCA).
32. See FLETCHER, supra note 2, at 18 (clarifying that only an alien can bring a suit
alleging a tort offending the law of nations); HENNER, supra note 1, at 16 (noting that
the ATCA createsjurisdiction in US courts for aliens with tort claims).
33. See FLETCHER, supra note 2, at 20 (explaining that the ATCA does not require
the tort to occur within the continental United States); HENNER, supra note 1, at 16
(noting that many ATCA cases arise out of actions that occur beyond US borders);
Greene, supra note 3, at 2 (establishing that the ATCA creates jurisdiction for US courts
to adjudicate matters brought by non-US plaintiffs for incidents occurring abroad).
34. See 28 U.S.C. § 1350 (2006); see also FLETCHER, supra note 13, at 18 (clarifying
that the statute does not set forth any requirements concerning the nationality of the
defendant); HUFBAUER & MITROKOSTAS, supra note 3, at 4-5 (articulating that three
different categories of defendants have developed: state actors, private actors, and
multinational corporations); STEPHENS & RATNER, supra note 16, at 6 (acknowledging
that the ATCA does not provide any citizenship restrictions for the defendant).
35. See supra note 34 and accompanying text (identifying the different categories of
ATCA defendants that have developed over time).
36. See supra note 34 and accompanying text (enumerating the different types of
ATCA defendants); Kochan, supra note 10, at 527 (positing that ATCA cases have been
brought against a variety of defendants for allegedly violating international law).
2011] A TCA AND INTERNATIONAL CORPORATE LIABILITY
1511
private actors, including, as discussed in this Note, multinational
corporations.3 7
The charged offense must arise in tort and offend the law of
nations or a treaty of the United States.38 In 1789, when the
Judiciary Act and accompanying ATCA were passed, such
actionable offenses were limited to 1) violations of safe conduct;
2) infringement of the rights of ambassadors; and 3) piracy. 9
The ATCA, however, is not a static doctrine, and scholars and
judges alike recognize evolving and expanding definitions of
both international law and ATCA torts."' They agree that the
ATCA should be considered in light of modern definitions of
international law.4 ' International law has primarily been drawn
from international agreements and customary law. 4 2 Further,
torts in violation of the law of nations are actionable in US
37. See supra note 34 and accompanying text (setting forth the different categories
of ATCA defendants); LINDA A. WILLET, MICHELE S. SUGGS & M. ALEXIS PENNOTTI, THE
ALIEN TORT STATUTE AND ITS IMPLICATIONS FOR MULTINATIONAL CORPORATIONS 16
(2003) (describing the contemporary ATCA as a vehicle to charge international
companies with human rights abuses).
38. 28 U.S.C. § 1350 (2006).
39. See HENNER, supra note 1, at 36 (acknowledging that in 1789 the law of nations
recognized three categories of violations: "l) violations of safe conduct, 2) rights of
ambassadors, and 3) piracy."); Casto, supra note 17, at 137 (describing the primary tort
offenses in the eighteenth century, according to English municipal law, as: "I.
[v]iolations of safe-conducts; 2. [i]nfringement of the rights of ambassadors; and 3.
[p]iracy").
40. See HENNER, supra note 1, at 114 (explaining that the available causes of action
under the ATCA are tied to the evolving standards of international law and will be
delineated as each case is decided); Gallagher, supra note 8, at 752 (establishing that the
US Supreme Court has deemed international law to be an evolving and changing body).
41. See supra note 40 and accompanying text (explaining that international law is
recognized by the global community as an evolving body of law); STEPHENS & RATNER,
supra note 16, at 52-53 (commenting that ATCA scholars believe that the statute should
be understood according to contemporary interpretations of international law, as
opposed to its eighteenth century definition).
42. See MICHAEL GARCIA, CONG. RESEARCH SERV., RL 32528, INTERNATIONAL lAW
AND AGREEMENTS: THEIR EFFEcr UPON U.S. LAW I (2004) (explaining that international
law is established in three ways: "(1) by international, formal agreement, usually
between States, (2) in the form of international custom, and (3) by derivation of
principles common to major world legal systems"); see also HENNER, supra note 1, at 21
(setting forth that international law is defined as "specific, universal, and obligatory
norms" established by general consensus among nations). See generally Sosa v. AlvarezMachain, 542 U.S. 692 (2004) (clarifying that the ATCA is rooted in international law).
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courts, as international law is now considered part of federal
common law.43
B.
Fildrtiga v. Pefia-Irala, and Sosa v. Alvarez-Machain:
Awakening the A TCA from Its 200-Year Slumber"4
Prior to the filing of the Second Circuit case Fildrtiga v.
Peia-Iralain 1980, ATCA jurisdiction was invoked less than two
dozen times in US federal courts, with jurisdiction upheld in only
two cases. 4 5 When the Second Circuit recognized the then
"rarely-invoked provision," it opened the federal courts for the
adjudication of ATCA claims, and addressed which torts violated
the law of nations. 46 Plaintiffs, the Paraguayan Fildrtiga family,
brought this action in the US District Court for the Eastern
District of New York ("EDNY") against Americo Noberto PefiaIrala ("Pefia"), also of Paraguay.4 7 Pefia was alleged to have
kidnapped and tortured seventeen-year old Joelito Fildrtiga
("Joelito"), ultimately causing his death.48 The Fildrtiga family
alleged that Joelito's death was in retaliation for his father's
43. See DAVIS, supra note 11, at 29 (observing that US federal jurisdiction over an
ATCA action is only created when the plaintiff claims a violation of international law);
STEPHENS & RATNER, supra note 16, at 35 (finding that US Supreme Court precedent
recognizes customary international law as part of federal common law under which
there is a right to sue in order to remedy violations).
44. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); Fildrtiga v. Pefia-Irala, 630 F.2d
876 (2d Cir. 1980); see STEPHENS & RATNER, supra note 16, at 7 (commenting that the
ATCA had essentially been dormant for 200 years); see also Kochan, supra note 10, at 527
(asserting that the statute has impacted how international law is understood in US
courtrooms).
45. See EiLSEA, supra note 2, at 12 (discussing Bolchos v. Darrell,3 F. Cas. 810 (D.S.C.
1795) (No. 1607), in which the court held that the defendant's violation of the Treaty of
Amity with France invoked a US court's jurisdiction pursuant to the ATCA, and Adra v.
Clift, 195 F. Supp. 857 (D. Md. 1961), in which the court found that passport fraud in an
international child custody case was actionable under the law of nations and therefore
under the ATCA); STEPHENS & RATNER, supra note 16, at 8 (identifying the two ATCA
cases as Bolchos and Adra).
46. See Fildrtiga,630 F.2d at 878, 887 (" [Wle believe it is suflicient here to construe
the Alien Tort Statute, not as granting new rights to aliens, but simply as opening the
federal courts for adjudication of the rights already recognized by international law.");
see also DAVIS, supra note I1, at 21 (explaining that Filartiga"served notice that ... [US]
courts are open to judge actions in any corner of the world."); Maleske, supra note 2
(explaining that the ATCA permits a Paraguayan citizen to bring an action against a
Paraguayan official in a US federal court because the charged offense violates
international law).
47. Fildrtiga,630 F.2d at 878.
48. Id.
2011] A TCA AND INTERNATIONAL CORPORATE LIABILITY
1513
political activities and beliefs. 49 In 1979, Dolly Fil;irtiga, Joelito's
sister, who had since moved to the United States, learned of
Pefia's presence in New York and filed a summons and complaint
in civil court bringing, among other charges, a violation of the
ATCA. 0 The Second Circuit ultimately held that a US court
could hold Pefia, a former inspector general of the Paraguayan
police, liable for the torture and murder of a Paraguayan
citizen. 5
Fildrtigais crucial to the development of the ATCA because
it established two important principles. First, the international
law applicable to the ATCA should be based not on an
understanding of the law in 1789, but on contemporary
principles. 2 The Second Circuit clarified that international law is
an evolving body of law recognized by the international
community.5 3 Additionally, according to the court, the law of
nations is drawn not only from the works of jurists, but also
reflected in the "general usage and practice of nations."5 4
Therefore, the Fildrtigacourt found torture to be in violation of
49. Id.; see DAVIS, supra note I1, at 18 (remarking that the Fildrtigas had attempted
to prosecute Peia in Paraguay, but their cfforts were met with substantial obstacles,
including the arrest of Mrs. Fildrtiga and her daughter for frivolous charges).
50. Fildrtiga,630 F.2d at 878-79; see DAVIS, supra note 11, at 18-19 (chronicling the
process of filing the Fildrtigacase and explaining that an attorney with the Center for
Constitutional Rights ("CCR"), expressing concern about the viability of charging Peria,
suggested a novel tactic to employ the then obscure ATCA to bring a civil case for
damages against Peia).
51. Fildrtiga,630 F.2d at 880 ("[W]e find that an act of torture committed by a state
official against one held in detention violates established norms of the international law
of human rights, and hence the law of nations."); see DAVIS, supra note I1, at 21
(recounting that although the Fildrtigacourt applied Paraguayan law, the district court
judge nevertheless elected to award $US10 million dollars in punitive damages).
52. See HENNER, supra note 1, at 58 (observing that the Fildrtigacourt established
that "l) international law under the ATS is determined based upon contemporary
standards rather than the standards of 1789, and 2) international law standards address
the relationship between a nation and individual citizens"); see also Fildrtiga, 630 F.2d at
884-85 (holding that "[t]treaties and accords...as well as the express foreign policy of
our own government, all make it clear that international law confers fundamental rights
upon all people vis-a-vis their own governments"); HUFBAUER & MITROKOSTAS, supra
note 3, at 4 (emphasizing that the Fildrtigadecision created a right for non-US citizens
to bring suit in US courts for international law violations as contemporaneously
interpreted).
53. Fildrtiga,630 F.2d at 881 ("[I]L is clear that courts must interpret international
law not as it was in 1789, but as it has evolved and exists among the nations of the world
today.").
54. Id. at 880 (citing United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61
(1820)).
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international law based on universal condemnation, customary
law, and international treaties and agreements. 55
The final paragraph of the Fildrtigadecision emphasizes the
increasing importance and awareness of basic human rights on
the international stage.5 6 Prior to the twentieth century, there was
little international recognition or consensus concerning human
rights. 57 Only in the aftermath of the atrocities of the First and
Second World Wars, and in light of the Nuremberg trials and
birth of the United Nations did the protection and preservation
of human rights rise to the level of an international norm.5 8 The
Fildrtiga court, by recognizing torture as a crime, signaled to
potential plaintiffs that human rights violations could be
actionable under the ATCA. 59
In 2004, the US Supreme Court further clarified the reach
and scope of the ATCA when it decided Sosa v. Alvarez-Machain,
finding that the statute is jurisdictional and applicable only to a
55. See id. ("[I]n light of the universal condemnation of torture in numerous
international agreements, and the renunciation of torture as an instrument of official
policy by virtually all of the nations of the world (in principle if not practice), we find
that an act of torture committed by a state official against one held in detention violates
established norms of the international law of human rights, and hence the law of
nations.").
56. See id. at 890 ("In the twentieth century the international community has come
to recognize the common danger posed by the flagrant disregard of basic human
rights."); see also id. ("In the modern age, humanitarian and practical considerations
have combined to lead the nations of the world to recognize that respect for
fundamental human rights is in their individual and collective interest.").
57. See HENNER, supra note 1, at 47 (contending that the Filrtigadecision must be
understood in the context of the atrocious human rights violations of the twentieth
century and an increasing awareness that the international community is obliged to
guarantee that such offenses do not transpire again); see also infra note 58 and
accompanying text (discussing the evolution of human rights law).
58. See Fildrtiga, 630 F.2d at 890 (recognizing that international human rights
developed in the twentieth century, largely in response to the Second World War during
which civilian life was treated with a heretofore unknown degree of indifference); see also
DAVIS, supra note 11, at 12 (positing that the Nuremberg Tribunals, following the
Second World War, affirmed the existence of international law applicable to all nations
that mandates protection of human rights); HENNER, supra note 1, at 46 (noting that
legal developments following the Second World War reflected a growing recognition
that nations have the responsibility to protect human rights).
59. See Fildrtiga, 630 F.2d at 890 ("Our holding today, giving effect to a
.jurisdictional provision enacted by our First Congress, is a small but important step in
the fulfillment of the ageless dream to free all people from brutal violence."); see also
Steinhardt, supra note 8, at 81 (stating that the Fildrtiga court acknowledged the
existence of human rights that are due to all, irrespective of citizenry).
2011] A TCA AND INTERNATIONAL CORPORATE LIABILITY
1515
narrow set of international law violations.60 In Sosa, the plaintiff,
Humberto Alvarez-Machain ("Alvarez-Machain"), was a Mexican
doctor charged with playing a role in the torture and murder of a
Drug Enforcement Agency agent.6 ' Alvarez-Machain alleged that
he was abducted and brought to the United States to stand trial. 62
Consequently, he brought a civil action against Sosa, a Mexican
national, and the United States, among others, claiming a
violation of the ATCA. 63
The US Supreme Court rejected Alvarez-Machain's ATCA
claim, holding that a claim of kidnapping was not actionable
under the ATCA. 64 The Court explained that any violation of the
contemporary law of nations must be based not only on custom
accepted by the international community, but must also be
analogous to those principles recognized in the eighteenth
century.65 Further, the US Supreme Court charged the lower
courts with "vigilant doorkeeping," explaining that, "the door is
still ajar. . . and thus open to a narrow class of international
norms today."6 6 To clarify, however, the US Supreme Court
would still allow the prosecution of a limited set of serious
human right violations under the ATCA. 67
60. See Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004) ("Congress intended the
ATS to further jurisdiction Ior a relatively modest set of actions alleging violations of the
law of nations."); see also Gallagher, supra note 8, at 751 (acknowledging that in Sosa, the
Supreme Court recognized a narrow category of rights that violate the law of nations
and are actionable under the ATCA); cf. DAVIS, supra note I1, at 25 (explaining that the
US Supreme Court's decision in the Sosa matter was long awaited, with eighteen amicus
curiae briefs filed on behalf of interested parties ranging from non-governmental
organizations to the European Commission).
61. See Sosa, 542 U.S. at 697.
62. See id. at 698.
63. Id. at 697.
64. See HENNER, supra note 1, at 8-9 (explaining that the Supreme Court did not
believe that kidnapping was actionable tinder the ATCA); see also DAVIS, supra note 11, at
35 (mentioning that the Supreme Court advised lower courts to use caution when
determining that a tort violates the law of nations and that such offenses must be
"specific, universal and obligatory").
65. See Sosa, 542 U.S. at 725 (" [W]e think courts should require any claim based on
the present-day law of nations to rest on a norm of international character accepted by
the civilized world and defined with a specificity comparable to the features of the 18thcentury paradigms we have recognized.").
66. Id. at 729; see alo Maleske, supra note 2 (recognizing that the Supreme Court's
instructions to lower courts explaining the application of the ATCA were extremely
unclear).
67. See FLETCHER, supra note 2, at 135 (asserting that the US Supreme Court
Justices were in agreement that the ATCA is an enduring fixture in USjurisprudence);
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Further, the US Supreme Court in footnote twenty to its
decision recognized the question of whether private actors and
corporate liability existed under the ATCA 68 The Court,
however, did not answer it. Instead, the Court asserted, "A
related consideration is whether international law extends the
scope of liability for a violation of a given norm to the
perpetrator being sued, if the defendant is a private actor such as
a corporation or an individual . . . ."69 Human rights plaintiffs
and corporate defendants alike have utilized this short footnote
in support of their respective arguments that a corporation may
or may not be held liable pursuant to the ATCA.7 0
C.
Doe v. Unocal: The MultinationalCorporationBecomes an
ATCA Defendant
As the recognition of certain human rights obligations has
become universal, the belief that multinational corporations
should be held liable for their alleged involvement in or
association with human rights violations has also become
increasingly prevalent.7 ' While both Fildrtigaand Sosa served to
HENNER, supra note 1, at 80 (observing that, following the Sosa decision, ATCA plaintiffs
were still free to pursue human rights violations in court); cf DAVIS, supra note 11, at 3536 (explaining that the US government has expressed concern about ATCA human
rights litigation, and the impact it will have on the nation's external relations, and the
separation and balance of power between the branches of government).
68. Sosa, 542 U.S. at 733 n.20.
69. Id.
70. See Gallagher, supra note 8, at 751-52 (suggesting that plaintiffs view footnote
twenty of the Sosa opinion as support for the contention that corporations can be liable
under international law, while corporate defendants argue that footnote twenty calls
into question whether they can be held liable as non-state actors tinder international
law).
71. See HENNER, supra note 1, at 5 (stating that worldwide attentiveness to human
rights issues has increased); HUFBAUER & MITROKOSTAS, supra note 3, at 45 (recognizing
that in the aftermath of the Second World War, the international community became
increasingly aware of its obligation to protect and preserve human rights); Sheri
Qualters, Rights Cases Multiply against Companies: Growth of Global CorporateOperations and
Key 9th Circuit Court of Appeals Case Lead to Upswing in Alien Torts, FULTON COUNTY DAlILY
REP., Aug. 24, 2007, at 8, available at 2007 WLNR 28038151 (setting forth an increasing
awareness that corporations may be charged for alleged human rights violations under
the ATCA); see also Bellinger, Second Wave, supra note 2, at 2 (establishing that
contemporary ATCA litigation occurred in two waves, first against international
government oflicials, and second against US and non-US corporations for aiding and
abetting human rights violations); KOEBELE, supra note 13, at 7 (contending that the
second wave of ATCA litigation against international corporations is based on the fact
that international law does not directly regulate or place legal obligations upon
2011] A TCA AND INTERNA TIONAL CORPORATE LIABILITY
1517
clarify the reach of the ATCA, the 1995 Second Circuit decision
Kadic v. Karadzic is also significant.7 2 The Kadic decision opened
the US courts to ATCA actions against private individuals and
extended subject matter jurisdiction to torture, summary
execution, genocide, and war crimes. 73 This shift also led to
increased tensions in US international relations as the United
States began to adjudicate crimes occurring abroad, committed
in many circumstances by non-US multinational corporations.7 4
In 1996, Doe v. Unocal Corporation, the first ATCA case
against a multinational corporation for alleged human rights
violations, was filed in the Ninth Circuit.7 5 The plaintiffs were
Burmese villagers, and the defendant, the Unocal Corporation,
was constructing a pipeline in Burma.76 The plaintiffs alleged
that Unocal, aware of the Burmese military's record of human
rights abuses, hired the military to secure the pipeline route,
subjecting plaintiffs to forced labor, rape, murder, and
corporations); cf DAVIS, supra note II, at 56 (quoting a CCR attorney, who said, "we
were jubilant about the [Fildrtiga] decision and we said we're going to apply this to other
cases and people kept coming to us[;] ... we worked to extend the principles to
command responsibility and to corporate liability.").
72. See Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).
73. See id. at 239-40; HENNER, supra note 1, at 7 (asserting that the Second Circuit
Kadic decision established that private citizens could be liable for torture, summary
execution, genocide, and war crimes, and stating that the court found for the plaintiff
and awarded damages of US$5.245 billion against the self-proclaimed president of the
'Republic of Srpska,' Radovan Karadzic); see also DAVIS, supra note 11, at 57 (remarking
that after the Kadic case, suits were increasingly brought against private individuals).
74. See Judith Chomsky, Will the Real ATS Please Stand Up?, 33 SUFFOLK TRANSNAT'L
L. REV. 461, 462 (2010) (acknowledging that some non-US governments have objected
to ATCA litigation as a challenge to their sovereignty); Bellinger, Shorteningthe LongArm
ofLaw, supra note 2, at 8 (asserting that the contemporary use of the ATCA may frustrate
the statute's original purpose, which was to preserve international relations).
75. See Doe v. Unocal Corp., 963 F. Supp. 880 (C.D.Cal. 1997); see also ELSEA, supra
note 2, at 20 (identifying Doe v. Unocal as the first ATCA case for alleged human rights
violations brought against a corporate defendant); DAVIS, supra note 11, at 204 (noting
that in early October 1996 Earth Rights International and CCR filed a case on behalf of
Burmese villagers against Unocal, Union, and Total Oil for human rights violations). See
generally Chambers, supra note 10, at 14 (establishing that the Unocal litigation had
proceeded further than any similar litigation brought against a corporate defendant).
76. See Doe v. Unocal Corp., 963 F.Supp. 880, 885 (C.D.Cal. 1997); ELSEA, supra
note 2, at 20-21 (describing the events leading to the filing of the Doe v. Unocal case);
DAVIS, supra note II, at 204-06 (explaining the events that brought about the Unocal
suit). See generally DOE V. UNOCAL CASE HISTORY, http://www.carthrights.org/legal/doev-unocal-casc-history (last visited Feb. 5, 2011) [hereinafter UNOCAL CASE HISTORY]
(chronicling the Doe v. Unocal litigation).
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relocation.77 The plaintiffs filed suit, and the United States
District Court for the Central District of California agreed to hear
the case.78 The court held that, although corporations could be
liable under the ATCA, Unocal was not liable, as the plaintiffs
failed to prove that Unocal had intended for the military to
commit human rights abuses.79 The Burmese villagers appealed,
and the Ninth Circuit reversed allowing the case to proceed.8 "1
The Ninth Circuit ultimately decided to rehear the appeal en
banc.81 Unocal, however, agreed to settle the case prior to the
hearing for a substantial undisclosed sum compensating the
villagers.82 Although the bench never issued a ruling, one scholar
argues that if it had, it would have created a broad standard of
aiding and abetting impacting multinational corporations and
their activities in developing nations.8 3 On the one hand the
settlement signaled to plaintiffs lawyers that the ATCA was a
viable instrument to hold multinational corporations liable for
human rights violations. 84 On the other hand, it also indicated to
77. See supra note 76 and accompanying text (breaking down the events leading to
the Unocallitigation).
78. See supra note 76 and accompanying text (indicating that the Unocal suit was
filed).
79. See Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1306-07, (C.D. Cal. 2000)
("Plaintiffs present no evidence that Unocal 'participated in or influenced' the military's
unlawful conduct; nor do Plaintiffs present evidence that Unocal 'conspired' with the
military to commit the challenged conduct.").
80. See Doe I. v. Unocal Corp., 395 F.3d 932, 956 (9th Cir. 2002) (noting that the
Circuit Court reversed the district court's grant of summary judgment on several of the
ATCA claims); see also DAVIS, supra note 11, at 57 (explaining that the Ninth Circuit
"ruled that the ATS supported claims against private defendants for aiding and abetting
violations of international law").
81. See Unocal, 395 F.3d at 979 ; cf DAVIS, supra note 11, at 210-11 (noting that at
this point in the litigation, US President Bush's Administration submitted briefs to the
Court on Unocal's behalf).
82. See DAVIS, supra note 11, at 211 (noting that although the terms of settlement
are confidential, attorneys for the Burmese villagers indicated that they were pleased
with the results); Armin Rosencranz & David Louk, Doe v. Unocal: Holding Corporations
Liable for Human Rights Abuses on Their Watch, 8 CHAP. L. REV. 135, 148 (2005)
(commenting that the Ninth Circuit did not have the opportunity to rehear the matter
as it was settled prior to the scheduled hearing date).
83. See WIILET, SUGGS & PENNOTTI, supra note 37, at 28-29 (describing that ATCA
litigation could potentially impact multinational corporations and the manner in which
they do business in developing nations); see also Chambers, supra note 10, at 15 (setting
forth that the Unocal decision is important because of the determination that a company
could be charged for human rights abuses based on a theory of aiding and abetting).
84. See DAVIS, supra note I1, at 58 (establishing that after the Unocal settlement
NGOs began employing the ATCA against multinational corporations they suspected of
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
1519
multinational corporations and the international community the
potentially high cost and present threat of ATCA litigation.85
The Unocal litigation also sparked the interest of the US
government, who filed an amicus brief voicing opposition to
corporate liability under the ATCA. 86 In its brief, President
Bush's Administration emphasized the risk of negative
consequences for the nation's foreign relations, and pointed out
that US federal courts were not the appropriate forum to address
the world's injustices.87 Additionally, the US Department of
Justice clarified that if Congress wanted US courts to play such a
role, it would establish a rule permitting them to do so. 88
Similarly, it contended that the court's' understanding of the
ATCA potentially interfered with the nation's external relations,
normally the province of Congress and the executive branch. 9
being linked to human rights abuses); Rosencranz, supra note 82, at 148 (observing that
the Unocal settlement was enthusiastically accepted by those who hoped that
multinational corporations could be held liable for their involvement in human rights
abuses).
85. See DAVIS, supra note 11, at 212 (quoting a US Department of State Legal
Adviser: "and then you start to see the corporate cases come in, [and] if they can get the
vicarious liability theory-then there is gold"); see also Anthony Sebok, Unocal Announces
It Will Settle A Human Rights Suit: What is the Real Story Behind Its Decision, FINDLAW.COM
(Jan. 10, 2005), http://writ.news.findlaw.com/sebok/20050110.html (observing that
Unocal may have settled to avoid negative publicity).
86. See Chambers, supra note 10, at 14 (commenting that US President Bush's
Administration filed multiple amicus briefs opposing the use of the ATCA against
corporations); see also DAVIS, supra note 11, at 124 (noting that the US President
Clinton's Administration took a dilferent stance towards ATCA cases voicing opposition
in response to cases that offended "traditional immunity or specific political question
issues").
87. See WIuET, SUGGS & PENNOTTI, supra note 37, at 30 (declaring that ATCA
litigation harms US external relations and that US federal courts were not intended to
police the world); see also DAVIS, supra note 11, at 126 (commenting that 1resident
Bush's Administration argued that the application of the ATCA to human rights
disputes between non-US nationals strayed from the statute's intended purpose).
88. See Supplemental Brief for the United States of America, as Amicus Curiae
Supporting Defendants-Appellants at 4, Doe I v. Unocal Corp., 395 F.3d 978 (9th Cir.
2003) (Nos. 00-56603, 00-56628) ("In this case, the aiding and abetting claim asserted
against defendants turns upon the abusive treatment of the Burmese people by their
military government. It would be extraordinary to give U.S. law an extraterritorial elTect
to regulate conduct by a foreign country vis-[A-]vis its own citizens in its own territory,
and all the more so for a federal court to do so as a matter of common law-making
power.").
89. See id. at 14-15 ("Importantly, the adoption of an aiding and abetting for ATS
cases would not be limited to the case of Burma, but potentially could affect policy
options for the United States around the world. Hence, this Court must look to the
'practical consequences' beyond its application to the facts of this case. Adopting aiding
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US jurisdiction pursuant to the ATCA is not the only
reason that human rights plaintiffs select the United States as a
forum for litigation. Several advantages of the US adversarial
system are attractive to ATCA litigants.o First, the cost of
litigation in the United States is generally lower than elsewhere
given that not-for-profit lawyers are willing to take these cases
free of charge."' Plaintiffs are not necessarily responsible for their
opponent's costs if claims are unsuccessful.9 2 Second, because of
the contingency fee system, plaintiffs legal costs may also be
reduced.9 3 As ATCA human rights cases against corporations
under the ATCA are not a guaranteed success, such protections
are very attractive. 94 Further, human rights plaintiffs will find
and abetting liability under the ATS would, in essence, be depriving the Executive of an
important tactic of diplomacy and available tools for political branches in attempting to
induce improvements in foreign human rights practices. The selection of the
appropriate tools, and the proper balance between rewards and sanctions, requires
policymaking judgment properly left to the federal political branches."); see also SARAH
JOSEPH, CORPORATIONS AND TRANSNATIONAL
HUMAN RIGHTS LITIGATION 57 (2004)
(discussing the US Department of justice's stance that the ATCA interferes with
international relations).
90. SeeJOSEPH, supra note 89, at 16 (observing that the United States is a favorable
forum for human rights litigation against transnational corporations because of
procedural advantages that the US adversarial system offers); KOEBELE, supra note 13, at
13 (observing that human rights plaintiffs prefer litigating in the United States because
of access to juries, discovery advantages, lower litigation costs and punitive damages);
Beth Stephens, Translating Fildrtiga: A Comparative and International Law Analysis of
Domestic Remedies for InternationalHuman Rights Violations, 27 YAIE J. INT'l L. 6 (2002)
(specifying that procedural advantages unique to the United States provide the ideal
forum for successful ATCA human rights claims). See also HUFRAUER & MITROKOSTAS,
supra note 3, at 47 (alleging that the nature of the US court system, which allows class
action suits, awards high punitive damages, and permits contingency fees, could cause
additional friction with other countries).
91. See JOSEPH, supra note 89, at 16 (acknowledging that contingency lees, the
potential for high rewards, and the willingness of public interest lawyers to represent
victims for minimal fees all contribute to lower litigation costs); Stephens, supra note 90,
at 13 (explaining that public interest, not-for-profit law firms, and pro bono litigation
allow human rights cases to be litigated with no fee).
92. SeeJOSEPH, supra note 89, at 16 (identifying that, in the United States, losing
parties are generally not obligated to pay the opposing parties' fees, unless directed to
do so by the courts); Stephens, supra note 90, at 14 (explaining that the United States
does not abide by the "loser pays" system).
93. SeeJOSEPH, supra note 89, at 16 (remarking that the contingency fee system in
the United States lowers a plaintifi's financial risk in the instance that they do not win
the case).
94. SeeJOSEPH, supra note 89, at 16 (observing that US procedural advantages are
especially significant as human rights attorneys raise unique and original legal
arguments against corporations leading to uncertain outcomes).
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
1521
legal representation with relative ease because of the potential
for substantial rewards.9 5 US discovery regulations also favor
plaintiffs, allowing them greater access to documents in a
corporate defendant's control.9 6 Finally, human rights plaintiffs
are also likely to win higher damages in US courts.97 The United
States awards punitive damages, meant to not only compensate
the victims but also to serve as an expression of "society's
revulsion for the [impugned] conduct."98
When the ATCA was first enacted in the eighteenth century,
Congress intended to preserve the United States' reputation by
seeking to meet the standards imposed by international law and
custom. The statute, however, remained essentially dormant until
it was invoked by lawyers in the Fildrtiga case in 1980. Following
this decision, the ATCA began its transformation into the statute
it is today. In 2004, with the Sosa case, the US Supreme Court
recognized the potential for corporate liability, although only in
a footnote. The Unocal litigation affirmed the reality of ATCA
corporate liability, and set the stage for ATCA activity in the
Second, Ninth, and Eleventh Circuits.
II. THE SECOND CIRCUIT VS. THE NINTH AND ELEVENTH
CIRCUITS: A DIFFERENCEIN OPINION
The Second, Ninth, and Eleventh Circuits are currently the
most active forums for ATCA litigation.9 9 All three have heard
95. See JOSEPH, supra note 89, at 17 (setting forth that successful ATCA litigation
against corporations is likely to be lucrative because of a corporation's ability to pay
substantial damages); STEPHENS & RATNER, supra note 16, at 167-68 (commenting that
ATCA litigation has resulted in damages of tens of millions of dollars, and that punitive
damages are largely based on the wealth and resources of the defendant).
96. See JOSEPH, supra note 89, at 17 (clarifying that US discovery regulations grant
plaintiffs greater access to documents in a corporate defendant's possession); Stephens,
supra note 90, at 15 (explaining that plaintiffs have greater access to a defendant's
documents in the United States).
97. See JOSEPH, supra note 89, at 17 (noting that the US courts generally award
higher damages than other international forums); Stephens, supra note 90, at 15
(explaining that American punitive damages lead to higher monetary awards than
systems that only reward compensation damages).
98. Stephens, supra note 90, at 15; see supra note 97 and accompanying text
(discussing American punitive damages); see also STEPHENS & RATNER, supra note 16, at
213 (commenting that although many non-US legal systems do not award punitive
damages, the United States does so in order to penalize and reprimand the defendant).
99. See infra notes 102-104 and accompanying text (describing the distribution of
ATCA cases among the US circuit courts). See generally Sarah A. Altschuller, The Federal
1522 FORDHAMINTERNATIONAL LAW JOURNAL
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cases involving disputes between multinational corporations and
0 1o The Circuits' rulings, however, have
human rights plaintiffs.o
been inconsistent, creating a circuit split."" Part II Section A
focuses on the Second Circuit, which has heard a substantial
number of ATCA cases and, consequently, handed down a series
of important decisions concerning corporate liability. 0 2 The
discussion begins with an overview of Khulumani v. Barclay
National Bank Ltd. and Presbyterian Church of Sudan v. Talisman
Energy, Inc., and concludes with the Second Circuit's most recent
decision Kiobel v. Royal Dutch Petroleum Corp. holding that
corporations are not liable under the ATCA. 0 3
The Ninth and Eleventh Circuits have also heard a
significant number of ATCA cases.104 Unlike the Second Circuit,
however, the Ninth and Eleventh Circuits have not ruled against
ATCA corporate liability, nor do they impose the same burden of
proof on plaintiffs as the Second Circuit previously did. 0 5 Section
B begins with a discussion of the Eleventh Circuit case Romero v.
Drummond Co., Inc. then turns to the Ninth Circuit case Bowoto v.
Chevron Corp. and concludes with an overview of the Eleventh
Circuit case Sinaltrainalv. Coca-Cola Co. to highlight the different
approaches the circuits have taken to ATCA cases. 0 6
Courts and Corporate Liability under the Alien Tort Statute, CORPORATE SOCIAL
RESPONSIBILITY AND THE LAW, Sept. 27, 2010), http://www.csrandthelaw.com
(mentioning that the US First, Third, Fourth, Fifth, Sixth, Eighth, and Tenth Circuits
have not directly addressed the question of corporate liability under the ATCA); Doe v.
Exxon Mobil Corp., No. 09-7125, 2011 WL 2652384, at *1 (D.C. Cir. July 8, 2011)
(holding that the D.C. Circuit recognizes corporate liability pursuant to the ATCA).
100. See supra note 2 and accompanying text (identifying multinational corporate
ATCA defendants Caterpillar, Dow Chemical, Yahoo!, Coco Cola, Nestle, Texaco, Royal
Dutch Shell, and a series of Swiss Banks, among others).
101. See infra Part II.A. and Part II.B. (surveying the split between the Second,
Ninth, and Eleventh Circuits).
102. See Jonathan Drimmer & Michael Lieberman, Drimmer and Lieberman on
Talisman Energy and the Alien Tort Statute: The Continuing Threat of Secondary Liability, 2010
EMERGING ISSUES 5182 (noting that roughly thirty percent of corporate ATCA cases to
date have been heard in the Second Circuit).
103. See infra Part II.A. (discussing the relevant Second Circuit ATCA decisions).
104. See Drimmer & Lieberman, supra note 102 (remarking that the Ninth and
Eleventh Circuits, which have not accepted the Second Circuit's aiding and abetting
purpose standard see roughly twenty and ten percent of ATCA cases respectively).
105. See id.
106. See Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008); Bowoto v.
Chevron Corp., 621 F.3d 1116 (9th Cir. 2010); Sinaltrainal v. Coca-Cola Co., 578 F.3d
1252 (11th Cir. 2009). See generally Drimmer & Lieberman, supra note 102 (showing that
unlike the Second Circuit, the Ninth and Eleventh Circuits employ a knowledge
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
A.
1523
Kiobel: The Second Circuit Decides CorporationsAre Not Liable
Under the A TCA
In 2007, the Second Circuit heard the Khulumani v. Barclay
National Bank Ltd. case.0 7 The action was a consolidated case
brought on behalf of South African plaintiffs who were victims,
or relatives of victims, of South Africa's apartheid regime.10 The
defendants were corporations that operated in the country
during the apartheid, including a roster of top banks and
businesses ranging from Ford Motor Company to International
Business Machines Corporation.109 Plaintiffs alleged that because
defendants continued to conduct business in South Africa during
the apartheid they were guilty of aiding and abetting the regime's
human rights abuses.1 10 In 2004, the US District Court for the
Southern District of New York ("SDNY") granted defendant's
motion to dismiss the ATCA claims."' In 2007, the Second
Circuit heard the case, affirming in part, vacating in part and
remanding. 12
The Second Circuit held that "a plaintiff may plead a theory
of aiding and abetting liability under the ATCA" thereby
standard when evaluating aiding and abetting liability, requiring that plaintiffs
demonstrate only that defendants had an awareness that their actions would facilitate
harm, not that they intended the consequences of their actions).
107. Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254 (2d Cir. 2007).
108. See id. at 258.
109. See id. at 254 (identifying, among others, Citigroup Inc., Ford Motor Co., and
Exxonmobil Corp. as defendants).
110. Khulumani, 504 F.3d at 258 (2d Cir. 2007) ("The plaintiffs argue that these
defendants actively and willingly collaborated with the government of South Africa in
maintaining a repressive, racially based system known as 'apartheid,' which restricted the
majority black African population in all areas of life while providing benefits for the
minority white population."); see WIILET, SUGGS & P3ENNOTrI, supra note 37, at 26
(commenting that multinational corporations were faulted essentially for continuing to
conduct business in apartheid South Africa).
11l. In re South African Apartheid Litigation, 346 F. Supp. 2d 538, 554 (S.D.N.Y.
2004) ("[T]his Court finds that there is no subject matter jurisdiction under the ATCA,
and thus all claims thereunder, including those for human rights violations, crimes
against humanity, unfair labor practices, and all other premised under international law,
must be dismissed. Because this Court finds no cause of action under international law,
plaintiffs have failed to state claims upon which to ground jurisdiction under 28 U.S.C.
§§ 1331 and 1332.").
112. See generally Khulumani, 504 F.3d at 264 (affirming the lower court's dismissal
of several claims for an inability to satisfy 28 U.S.C. § 1332, and rejecting the district's
dismissal of plaintiffs ATCA allegations).
1524 FORDHAMINTERNATIONAL LAW JOURNAL
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acknowledging corporate liability in the Second Circuit.'13 While
two of the three circuit court judges agreed that aiding and
abetting is actionable under the ATCA, the judges differed as to
whether domestic or international law provided the appropriate
standard for analysis. 14 Regardless of approach, however, the
Second Circuit confirmed that it was an open forum for
corporate liability under the ATCA. 1 5
The recognition of corporate liability raised concerns
among critics, who argued that the possibility of corporate
liability for the actions of the apartheid regime could
considerably impact the operation of corporations in developing
countries. 16 Further, the court recognized that ATCA human
rights litigation touched upon US foreign policy, and that a
degree of deference should be accorded to these concerns." 7
113. See id. at 260; see also Sarah Alischuller, Dan Feldman & Lara Blecher,
CorporateSocial Responsibility, 42 INT'L L. 489, 490 (2008) (underscoring that the Second
Circuit, in Khulumani, supported a theory of aiding and abetting liability); Kristen
Hutchens, InternationalLaw in American Courts-Khulumani v. Barclay National Bank
Ltd., 9 GERMAN L.J. 639, 644 (2008) (describing the revolutionary nature of the
Khulumanidecision).
114. See Gallagher, supra note 8, at 762 (recounting that the Khulumani Court split
as to whether to consult international or domestic law to define the factors of aiding and
abetting under the ATCA); see also Sebok, supra note 85 (recognizing that it is uncertain
whether ATCA aiding and abetting liability should be based on international law or
federal common law). Compare Khulumani, 504 F.3d at 284 (Hall, j., concurring) ("As
Sosa makes clear, a federal court must turn to international law to divine standards of
primarily liability tinder the ATCA. To derive a standard of accessorial liability, however,
a federal court should consult the federal common law."), with id. at 270 (Katzmann,J.,
concurring) ("[T]o assure itself that it hasjurisdiction to hear a claim under the ATCA,
[a federal court] should first determine whether the alleged tort was in fact 'committed
in violation of the law of nations, 28 U.S.C. § 1350, and whether this law would recognize
the defendants' responsibility for that violation."). But see id. at 321 (Korman, J.,
dissenting) (positing that international law does not recognize corporate liability).
115. See supra note 114 and accompanying text (stating that the Khulumani Court,
although differing on applicable standards, recognized the possibility of aiding and
abetting liability under the ATCA).
116. See Khulumani, 504 F.3d at 297 (Hall,J., concurring); see also WILLET, SUGGS &
PENNOTII, supra note 37, at 20 (alleging that if corporate defendants could be held
liable for violations committed by the South African apartheid regime, businesses may
be deterred from investing or conducting business in nations with similar problems);
Gallagher, supra note 8, at 757 (noting Germany's concerns that ATCA litigation against
a German corporation would offend the country's sovereignty, and international
economic exchange).
117. See Khulumani, 504 F.3d at 259 (commenting that the both the US and South
African governments voiced opposition to this litigation); id. at 306-11 (Korman, J.,
dissenting) (contending that deference should be accorded to the concerns of the US
executive, and other nations to protect US foreign policy).
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
1525
Additionally, the possibility of such liability could also discourage
investment in or forming relationships with governments with
questionable human rights records.'1 8
On October 2, 2009, the Second Circuit issued another
significant decision for ATCA corporate liability, Presbyterian
Church of Sudan v. Talisman Energy, Inc."9 The suit, first filed in
2001 in SDNY, alleged that Talisman Energy, a Canadian
corporation, aided and abetted the Sudanese government's
ethnic-cleansing campaign and displacement of local populations
in order to secure oil exploration and protect oil fields.120
Talisman twice filed a motion to dismiss, which the courts
denied.' 2' In 2006, however, the court granted summary
judgment for Talisman.'2 2 Plaintiffs appealed to the Second
Circuit, which affirmed the lower court's holding.'2 3 The Court
held that the plaintiffs failed to prove that Talisman Energy
118. See id. at 330 (Korman, J., dissenting) ("[T]he decision to embrace this
broader scope of ATCA liability will generate tremendous uncertainty for private
corporations, who will be reluctant to operate in countries with poor human rights
records for fear of incurring legal liability for the regimes' bad acts."); see alsoJOSEPH,
supra note 89, at 52 (reasoning that continued ATCA litigation against corporations may
lead companies to curb investment in economically dependent countries that have
questionable human rights histories).
119. Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir.
2009).
120. See id. at 262-64; see also DAVIS, supra note II, at 159 (clarifying that in
Presbyterian Church the plaintiffs, Sudanese residents, charged Talisman Energy with
facilitating the Sudanese government's blatant human rights violations, including
genocide and crimes against humanity in order to protect oil exploration); Regina,
Canada Says
U.S.
Can't Hear Lawsuit, Canada.com
(May
26,
2007),
http://www.canada.com/reginaleaderpost/news/story.html?id=0b22a8b6-36a3-48cOa8ed-86ecb9a86e98 (acknowledging the Sudanese plaintiffs' position that the
government with the aid of Talisman Energy lead an ethnic cleansing campaign).
121. See Presbyterian Church, 582 F.3d at 251-52 (chronicling Talisman Energy's
motions to dismiss); see also No Liabilityfor Violations of InternationalLaw Unless Aid Was
Purposeful, Second Circuit Rules in Cause Brought Under Alien Tort Statute, MILBANK
(2009),
http://www.milbank.com/NR/rdonlyres/78529DE8-6577-400ELITIGATION
ABC320650084B954/0/101309-lPresbyterian Church of Sudan v TalismanEnergy
Inc.pdf (noting that the court rejected both of Talisman's motions to dismiss, despite
the US and Canadian governments' opposition to the litigation).
122. See Presbyterian Church, 582 F.3d at 254 (explaining that after Talisman won
summary judgment the district court entered ajudgment for Talisman).
123. See id. at 256 (asserting that although the violations of international law
alleged by plaintiffs: "[i] genocide, [ii] war crimes, and [iii] crimes against humanity"
are all actionable under the ATCA, plaintiffs failed to establish the requisite purpose
required for liability).
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purposefully partook in human rights violations against the
Sudanese people. 124
In its opinion, the Second Circuit clarified the standard for
corporate liability under the ATCA. The court posited that the
applicable standard is found in international law. 2 5 Therefore, by
mandating the application of the international mens rea standard,
the court established that aiding and abetting liability requires
purpose, not merely knowledge.' 26 Accordingly, a plaintiff must
demonstrate that the defendant acted with the purpose of
committing human rights abuses, which Presbyterian Church
failed to do. 27
The Presbyterian Church decision is relevant for the evolution
of corporate ATCA liability in the Second Circuit for several
reasons. First, the court did not definitively declare that
corporations can be held liable for violating international law. 28
The court noted that because plaintiff's claims failed on other
grounds, it was unnecessary to rule on the question of corporate
124. See id. at 247 (holding that "[t]he standard for imposing accessorial liability
under the ATS must be drawn from international law; and that under international law,
a claimant must show that the defendant provided substantial assistance with the
purpose of facilitating the alleged offenses"); see also Drimmcr & Lieberman, supra note
102 (explaining that plaintiffs failed to prove that Talisman Energy intentionally
supported the claimed violations).
125. See Presbyterian Church, 582 F.3d at 259 ("Thus applying international law, we
hold that the mens rea standard for aiding and abetting liability in ATS actions is purpose
rather than knowledge."); see also Chimbne 1. Keitner, Kiobel v. Royal Dutch Petroleum,
Another Round in the Fight over CorporateLiability under the Alien Tort Statute, 14 AM. SOC'Y
INT'L L. 30 (2010), available at http://www.asil.org/insightsl00930.cfm (discussing the
Second Circuit's contention that international law requires a plaintiff to demonstrate
that the defendant purposefully aided and abetted human rights violations).
126. See supra note 125 and accompanying text (identifying the applicable
standard); see also Drimmer & Lieberman, supra note 102 (advancing that when the
Court identified international law as the source of ATCA secondary liability it declined
to adopt the US domestic standard articulated in the Restatement (Second) of Torts §
876(b), which only requires knowledge to establish aiding and abetting liability).
127. See Drimmer & Lieberman, supra note 102 (summarizing the Second Circuit's
holding that mere knowledge of human rights violations is not enough to establish
liability). See generally PresbyterianChurch, 582 F.3d 244.
128. PresbyterianChurch, 582 F.3d at 261 n.12 ("We will assume, without deciding,
that corporations such as Talisman may be held liable for the violations of customary
international law that Plaintiffs allege. Because we hold that plaintiffs' claim fail on
other grounds, we need not reach, in this action, the question of 'whether international
law extends the scope of liability' to corporations.").
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
1527
liability first raised in footnote twenty of the Sosa decision.'29
Second, the court's decision heightened a plaintiffs burden of
proof, making it increasingly difficult to bring human rights
claims against corporate defendants. 30 On October 4, 2010, the
US Supreme Court declined Talisman Energy's request to rule
on the question of corporate liability under international law.' 3 '
Not only did the US government object to the application of
the ATCA to multinational corporations, but the Canadian
government and a group of Canadian businesses, as amicus
curiae, also voiced opposition to the case.'3 2 The Canadian
government, in a statement of interest explained that US
adjudication of the case would have a detrimental effect on
Canada's strategy to negotiate a peace settlement in Sudan
through economic engagement in the nation. 3 The Canadian
129. Id.; see also Gallagher, supra note 8, at 759 (reaffirming that the court did not
rule on the question of corporate liability first raised in footnote twenty of the Supreme
Court's Sosa opinion).
130. See No Liability for Violations of InternationalLaw, supra note 121 (observing that
human rights plaintiffs in the Second Circuit will no longer be able to charge
multinational corporations based on a corporation's mere knowledge of wrongdoing in
a country where they are conducting economic activity).
I31. See Talisman Energy, Inc. v. Presbyterian Church of Sudan, 131 S. Ct. 122 (2010)
(denying a petition for writ of certiorari); see also Alien Torts Trial Trais: An American
Court Blocks Human-Rights Suits Against Businesses, ECONOMIsT, Oct. 9, 2010, at 51
(reporting that the US Supreme Court elected not to confront the question of whether
corporations could be held liable for human rights violations under international law).
132. See generally Brief for the United States as Amicus Curiae Supporting
Defendant-Appellee, The Presbyterian Church of Sudan v. Talisman Energy, 582 F.3d 244
(2007) (No. 07-0016) (detailing the negative impact that ATCA litigation has on the
country's international relations and Canada's objection to the litigation); Brief for the
Canadian Chamber of Commerce, the Mining Association of Canada et al., as Amici
Curiae Supporting Defendant-Appellec, The Presbyterian Church of Sudan v. Talisman
Energy, 582 F.3d 244 (2007) (No. 07-0016) ("Canada was the place where this dispute
should have been addressed assuming that Sudan, itself the alleged violator of the law of
nations, was not a place where justice could be done. When filed, the case had more
connection to Canada than to the United States, and the comity of nations and
international rules of jurisdiction would have directed it to Canada.").
133. See Presbyterian Church, 582 F.3d at 252 (identifying Canada's argument that
ATCA litigation interferes with the country's sovereignty, hampers its ability to use trade
to alTect peace, and offends traditional extraterritorial jurisdiction); Brief for the United
States, Presbyterian Church, supra note 132, at 22 ("As the district court in this case
observed, the State Department received a diplomatic note from Canada raising
significant concerns about United States courts' expansive exercise of jurisdiction under
the ATS in a manner that disrupts Canada's own efforts to use economic engagement in
Sudan, combined with sanctions, in an attempt to bring about peaceful resolution of
Sudan's internal disputes."); see also DAVIS, supra note II, at 159-60 (recognizing
Canada's contention that the United States should not adjudicate the case because the
1528 FORDHAMINTERNATIONAL LAWJOURNAL
[Vol. 34:1502
business community also warned that ATCA litigation could
complicate and discourage investment in developing countries. 3 4
Similarly, the United States also appealed to the Court regarding
3 The Southern District of New
its own relations with Sudan.'1
York rejected the argument that concern for US international
relations mandated dismissal of the case, reasoning that the
relationship between the case and US relations with Sudan and
Canada was insufficient grounds. 3 6 Although Talisman Energy
won the case, the company still ultimately withdrew from
Sudan.'37
On September 17, 2010, the Second Circuit definitively held
that multinational corporations could not be held liable for
human rights violations under the ATCA.'3 8 In 2002, Esther
events occurred outside the country, and lurther that it could negatively impact
Canada's peace efforts in Sudan); Jonathan Drimmer, Think Globally, Sue Locally, WALL
ST. J., june 19, 2010, at A23 (noting that Talisman Energy, spent millions of dollars in
Sudan on development programs in order to bring peace in the "civil war ravaged
nation"). See generally Brief for Wash. Legal Found. & Allied Educ. Found. as Amici
Curiae Supporting Appellee, The Presbyterian Church of Sudan v. Talisman Energy (2d
Cir. 2007) (No. 07-0016) (expressing concern for Canadian international affairs:
'Canada by diplomatic note has confirmed that 'the lawsuit interfered with Canadian
foreign policy by undermining Canada's ability to offer trade support services to the
Sudanese government as an inducement to resolve Sudan's internal disputes, because
Canadian Corporations would be unwilling to cooperate with the provisions of such
services if doing so would subject them to suits in U.S. courts"').
134. See Brief for the Canadian Chamber of Commerce, supra note 132, at 27-28
("Canadian policies using economic trade as a tool of diplomacy may be impeded if
investments abroad are curtailed by fear of ATS claims. If ATS litigation is permitted to
chill legitimate business investment and activities in developing countries, it will
diminish one of the most effective vehicles for economic development and with it
increased respect for human rights.").
135. SeeJOSEPH, supra note 89, at 44 (noting that the court found that continued
litigation would not hamper the United States' efforts to negotiate a peace agreement in
Sudan); Washington Brief, supra note 13, at 24-25 (describing the Washington Legal
Foundation's belief that because the events at issue in the suit did not occur in the
United States, and plaintiffs did not have any meaningful contact with the country, it
makes little sense for a US federal court to hear the matter).
136. See PresbyterianChurch, 582 F.3d at 252 ("As to dismissal on political question
grounds, the court emphasized that the State Department letter did not explicitly
declare that the lawsuit would interfere with United States policy toward the Sudan or
Canada . . . ."); see also PresbyterianChurch of Sudan v. Talisman Energy, No. 01-9882, 2005
WL 2082846, at *6 (S.D.N.Y. Aug. 30, 2005) (discussing Canada's letter to the Court,
and dismissing Canada's concerns about the application of the ATCA).
137. See Drimmer, supra note 133 (clarifying that in the aftermath of the case,
Talisman sold its interests and withdrew from Sudan).
138. See Kiobel v. Royal Dutch Petroleum, 621 F.3d 111, 120 (2d Cir. 2010) ("As we
explain in detail below, however, customary international law has steadfastly rejected the
2011] A TCA AND INTERNATIONAL CORPORATE LIABILITY
1529
Kiobel of Nigeria filed a putative class action suit against the
Royal Dutch Petroleum Company of the Netherlands, the Shell
Transport and Trading Company of the United Kingdom, and
subsidiaries.'3 9 The Shell Transport Petroleum Development
Company of Nigeria engaged in oil exploration and development
in the Ogoni region of the Niger Delta.140 Residents of the Ogoni
region protested the environmental impacts of these activities.141
The plaintiffs alleged that defendants enlisted the Nigerian Army
to quell the protests.'4 2 The army was accused of massacring the
Ogoni villagers, raping and arresting residents, and plundering
and looting with the approval and assistance of the corporate
defendants. 4 3 In 2006, the Southern District of New York
dismissed the lawsuit in part, and certified its entire order for
interlocutory appeal.'44 The Second Circuit proceeded to dismiss
the claim citing a lack of subject matter jurisdiction. 4 5 On
February 4, 2011, the court denied plaintiffs' petition for a panel
rehearing.146
The Second Circuit bench split in its decision, with the
majority holding that corporations cannot be held liable under
notion of corporatc liability for international crimes, and no international tribunal has
ever held a corporation liable for violation of the law of nations. We must conclude,
therefore, that insofar as plaintiffs bring claims inder the ATS against corporations,
plaintiffs fail to allege violations of the law of nations, and plaintiffs' claims fall outside
the limited jurisdiction provided by the ATS.").
139. Id. at 123.
140. Id.
141. Id.
142. Id.
143. Id.
144. See id. at 124 (describing the procedural history of the case).
145. See id. at 149 (citations omitted) ("We do not know whether the concept of
corporate liability will 'gradually ripen[ ] into a rule of international law.' It can do so,
however, only by achieving universal recognition and acceptance as a norm in the
relations of the States inter se. For now, and for the foreseeable future, the Alien Tort
Statute does not provide subject matter jurisdiction over claims against corporations.");
see also Keitner, supra note 125 (commenting that the Second Circuit dismissed the case
due to lack of subject matter jurisdiction because the defendants were not natural
persons but a corporation).
146. See Kiobel v. Royal Dutch Petroleum Co., 2011 WL 338048, at *4 (2d Cir.
2011) (Jacobs, J. concurring) ("The majority opinion demonstrates why ATS suits
against corporations are foreclosed. It is a matter of great importance to say so, in order
to promote international comity, to administer clicient handling of cases, and to avoid
the use of our courts to extort settlements.").
1530 FORDHAMINTERNATIONAL LAW JOURNAL
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international law and, therefore under the ATCA.'4 7 The twojudge majority reasoned that because no international tribunal
has recognized corporate liability under customary international
law, it follows that it is not actionable under the ATCA.148
Drawing on footnote twenty of the Sosa opinion, as well as the
Presbyterian Church decision, the court considered customary
international law when determining what claims are actionable
under the ATCA, and who may be a defendant.149 Therefore,
courts should look not to domestic law, which permits corporate
liability, but instead to customary international law, which the
judges insist has not yet accepted this form of liability.15 0 Further,
the court recognized the relevance of the ATCA's original
purpose to protect and preserve international relations.15 '
The concurring judge, although in agreement with the
outcome, rejected the finding that corporations cannot be liable
147. Kiobel, 621 F.3d at 149 ("Moreover, nothing in this opinion limits or forecloses
corporate liability under any body of law other than the ATS-including the domestic
statutes of other States-and nothing in this opinion limits or forecloses Congress from
amending the ATS to bring corporate defendants within ourjurisdiction.").
148. Id. at 148-49 ("No corporation has ever been subject to any form of liability
(whether civil, criminal, or otherwise) under the customary international law of human
rights. Rather, sources of customary international law have, on several occasions,
explicitly rejected the idea of corporate liability. Thus, corporate liability has not
attained a discernable, much less universal, acceptance among nations of the world in
their relations inter se, and it cannot, as a result, form the basis of a suit under the
ATS."); see also Keitner, supra note 125 (highlighting that international tribunals have
not recognized corporate liability pursuant to international law, and therefore the ATCA
may not either).
149. Kiobel, 621 F.3d at 128.
150. See Keitner, supra note 125 (stating that the Second Circuit's decision
recognized that in footnote twenty of the Sosa decision "the Supreme Court foreclosed
the application of domestic law to the question of corporate liability"); see also julian G.
Ku, The Curious Case of Corporate Liability under the Alien Tort Statute: A Flawed System of
Lawmaking, 51 VA. J. INT'L L. 353, 372 (2010) (explaining that the Kiobel majority
considers international law the defining source behind ATCA jurisprudence).
151. Kiobel, 621 F.3d at 140 ("It bears underscoring that the purpose of the ATS
was not to encourage the United States courts to create new norms of customary
international law unilaterally... . Instead, the statute was rooted in the ancient concept
of comity among nations and was intended to provide a remedy for violations of
customary international law that 'threaten[ ] serious consequences for in international
affairs.' . . . Unilaterally recognizing new norms of customary international law-that is,
norms that have not been universally accepted by the rest of the civilized world- would
potentially create friction in our relations with foreign nations and, therefore, would
contravene the international comity the statute was enacted to promote.").
2011] A TCA AND INTERNATIONAL CORPORATE LIABILITY
15 31
pursuant to the ATCA.'5 2 He protested that the majority's
interpretation of the law undermines international law's
commitment to fundamental human rights.15 3 Further, he faulted
the majority's reliance on international criminal law as opposed
to civil law, reasoning that the law of nations has outlawed certain
conduct, and it is for each state to determine how to punish such
violations. 154 The concurring judge also pointed out that the
United States has chosen to look to civil instead of criminal
liability, and the majority dismisses this approach.155 Despite the
judge's differing opinions with Kiobel, ATCA plaintiffs lost the
"traditionally most hospitable" circuit for human rights actions
against corporations.15 6
The Second Circuit's decision was also welcomed by non-US
communities and multinational corporations.15 7 These groups
had consistently voiced their opposition to the United States
claiming jurisdiction over the affairs and actions of i multinationa
corporations. They posited that such an action, in itself, was a
violation of international law.' 58
152. Kiobel, 621 F.3d at 160 (Leval, J., concurring) ("No authoritative source
document of international law adopts or in any way approves the majority's view that
international law authorizes imposing civil awards of compensatory damages on natural
persons but leaves corporations free to violate its rules without legal consequences."); see
Ku, supra note 150, at 372 (observing that in light of the Kiobel decision, prior ATCA
decisions concerning corporate liability were incorrectly decided).
153. Kiobel, 621 F.3d at 170 (Leval,.J., concurring) ("There is simply no logic to the
majority's assumption that the withholding from international criminal tribunals of
jurisdiction to impose criminalpunishments on corporations (for reasons relating solely
to a perception that corporations cannot commit crimes) means that international law's
prohibitions of inhumane conduct do not apply to corporations.").
154. See id. at 175 (" [T]he majority's contention ... misunderstands how the law of
nations functions. Civil liability under the ATS for violation of the law of nations is not
awarded because of a perception that international law commands civil liability
throughout the world.... The majority's ruling defeats the objective of international law
to allow each nation to formulate its own approach to the enforcement of international
law.").
155. See supra notes 151-152 and accompanying text (describing the majority's
application of international criminal law).
156. See Keitner, supra note 125 (contending that human rights plaintiffs are likely
anxious about the result of the Kiobel decision, as the Second Circuit was an open forum
for ATCA claims).
157. See Bellinger, Shortening the Long Arm of the Law, supra note 2, at 8 (noting that
members of the international community who oppose the United States' exercise of
extraterritorial jurisdiction, and adjudication of non-US citizens welcome the Kiobel
decision).
158. See supra note 157 and accompanying text (explaining that the international
community positively reacted to the court's holding).
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The Ninth and Eleventh Circuits: US CourtroomDoors Are Still
Open to CorporateLiability under the ATCA
While the ATCA cases in the Second Circuit ended prior to
trial, the Eleventh Circuit, in 2007, was the first to send such a
case to ajury.'5 9 The case, Romero v. Drummond Company, involved
a conflict between a Colombian trade union, and the local
Colombian subsidiary of Drummond Co., an Alabama coal
mining company.160 The plaintiffs, heirs of the deceased union
leaders, and the union, alleged that Drummond's local
subsidiary, with the knowledge of executives in the United States,
hired Colombian paramilitaries to torture and kill union
leaders.161 Additional claims were also brought under Colombian
law, the Torture Victim Protection Act of 1991, and Alabama
state law.162 Only one claim, that Drummond aided and abetted
the abuses went to trial, the rest were dismissed in summary
judgment proceedings.' 63 Ajury ultimately found for Drummond
Co., absolving the company of any liability.164 Plaintiffs appealed
to the Eleventh Circuit, which affirmed the lower court's
holdings and outcome of the trial.' 65
Romero is significant for human rights plaintiffs and
corporate defendants because the Eleventh Circuit recognized
that ATCA liability extends to corporations.' 66 The court based its
holding not only on precedent but also on the text of the ATCA,
which does not expressly bar a corporate defendant.'6 7 Further,
B.
159. See Eric A. Savage & Michael G. Congiu, The Continued Viability of the Alien Tort
Claims Act and the Torture Victim Protection, MONDAQ, Jan. 29, 2009, available at 2009
WLNR 1699098 (explaining that the Eleventh Circuit Drummond case was the first
corporate ATCA case to go to trial); see also Qtialters, supra note 71, at 8 (describing the
first ATCA jury trial in an Alabama court as "heartening to corporate defendants");
Altschuller, Feldman & Blecher, supra note 113 (claiming that with the Drummond case
the first ATCA case headed to trial).
160. See Romero v. Drummond Co., 552 F.3d 1303, 1308-09 (11th Cir. 2008).
161. Id.
162. Id. at 1318.
163. Id. at 1313.
164. Id.; see also Qualters, supra note 71, at 8 (commenting that while the trade
unionists alleged that the paramilitaries were Drummonds agents, the jury disagreed
and found Drummond not liable for the deaths of the trade unionists).
165. Romero, 552 F.3d at 1303-04.
166. See infra note 167 (identifying the Court's holding).
167. Romero, 552 F.3d at 1315 ("Because the Alien Tort statute is jurisdictional, we
must address ... corporate liability under that statute. The text of the Alien Tort Statute
provides no express exception for corporations ... and the law of this circuit is that this
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
1533
the court also recognized the existence of aiding and abetting
liability.'68 Although the jury found for Drummond Co., after the
Romero decision, the Eleventh Circuit remained a hospitable
forum for corporate ATCA claims.16 9 Significantly, the outcome
of the case demonstrated the possibility of defeating ATCA
claims at trial. 70 Although Drummond Co. won the suit, the
company still suffered economic consequences following the
litigation, including the loss of a potential client.' 7'
In 2008, Bowoto v. Chevron Corp went to trial in the United
States District Court for the Northern District of California.'72
The suit arose out of events that occurred on the Parabe oil
platform off the coast of Nigeria in May 1998 when Nigerian
natives took over the platform in what plaintiffs described as a
peaceful protest.'7 3 Chevron, however, disagreed with the
characterization, alleging that the protesters were dangerous,
and that they seized Chevron's workers threatening them with
violence. 7 4 After four days of protest and failed negotiations,
Chevron called upon the Nigerian government's security forces
for assistance. 7 The forces killed several protestors and allegedly
tortured others.' 76 The Northern District of California, after
dismissing several of plaintiffs' claims, allowed the remaining
claims, including liability for aiding and abetting under the
statute grants jurisdiction from complaints of torture against corporate delendants.").
But see Nora L. Tooher, Human-Rights Cases Find Shelter under 'Pirate-Law,' MISSOURI
LAWYERS WEEKLY, Sept. 10, 2007, availableat 2007 WLNR 26821480 (expressing concern
for the foreign policy implications of ATCA litigation).
168. See Romero, 552 F.3d at 1315 ("the law of this Circuit permits a plaintiff to
plead a theory of aiding and abetting liability under the Alien Tort Statute .... ").
169. See supra note 167 and accompanying text (commenting that corporate ATCA
liability exists in the Eleventh Circuit); see also Savage, supra note 159 (clarifying that the
Eleventh Circuit recognized that a multinational company can be found liable for
human rights violations under the ATCA).
170. See Qualters, supra note 71, at 8 (pointing out that plaintiffs argued that their
inability to present additional witnesses may have affected the outcome of the case).
171. See Mike Cooper, Danish Energy Firm Will Stop Buying from Drummond, Pending
Court Case, PILArrs COAL OUTLOOK, Nov. 27, 2006, at 6, available at 2006 WLNR
21355024 (remarking that the Danish 1irm Dong declined "to book any fresh
Colombian coal from the US company Drummond while a legal action alleging its
involvement in the deaths remain [ed] unresolved").
172. Bowoto v. Chevron Corp., 621 F.3d 1116 (9th Cir. 2010).
173. Id. at 1121.
174. Id.
175. Id. at 1122.
176. Id.
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ATCA to go to trial.177 On December 1, 2008, the jury returned a
verdict for Chevron, plaintiffs appealed and the Ninth Circuit
affirmed the jury verdict.178
Although the case ended in a verdict for the corporate
defendants, the Chevron court still acknowledged the validity of
corporate liability under the ATCA for aiding and abetting.'79
The court explained that the Nigerian military was only
Chevron's agent when carrying out the specific tasks Chevron
had hired them to perform, namely security. 80 The jury, based
on the presented evidence, found that the military had not used
excessive force, thereby freeing Chevron of liability.'8' After its
victory, Chevron filed for court fees, an application that the court
denied.'8 2 Despite this loss, human rights plaintiffs still consider
Chevron a landmark case because it reached trial, and thereby
demonstrated potential for corporate liability in the future.'8 3 At
177. See id.; see also Pamela A. MacLean, Chevron Seeks Costs after Winning Human
Rights Case, LEGAL INTELLIGENCER, Mar. 16, 2009, at 4 (commenting that plaintiffs
ultimately alleged that Chevron should be liable for aiding the Nigerian military);
Qualters, supra note 71, at 8 (noting that on August 14, 2007, judge Susan Illston
reversed her 2006 judgment, granting summary judgment for some of the defendant's
claims and sent the remaining open issues to trial).
178. See Bowoto, 621 F.3d at 1116-17; MacLean, supra note 177, at 4 (reporting that
a jury denied plaintiffs' claims that they were subject to torture and wrongftil death
because of their involvement in the platform protest).
179. See Bowoto v. Chevron, No. 99-02506, 2006 WL 2455752, at *9 (N.D. Cal. Aug.
22, 2006) (explaining that because private actors are liable tinder international law,
corporations are also); see also James Donnclly-Saallield, Irreparable Harms: How the
DevastatingEffects of Oil Extraction in NigeriaHave Not Been Remedied by Nigerian Courts, the
African Commission, or U.S. Courts, 15 HASTINGS W.-Nw. J. ENVT'L. L. & PoL'Y 371, 403
("First, the court concluded that the plaintills had demonstrated suficient evidence of
aiding and abetting to establish state action, including evidence that Chevron personnel
were directly involved in the attacks that formed the basis of the suit, transported the
Nigerian military to the sites of the attacks, paid the Nigerian military and knew that it
was prone to use of excessive force.").
180. See Keither Ecker, Alien Allegations: Jury Clears Chevron of Responsibility in
Nigerian Security Operation, INSIDE COUNSEL, Mar. 1, 2009, at 20 (clarifying the court's
finding that for ATCA liability, the security forces would only be considered Chevron's
agent if when performing the actions they were acting tinder Chevron's instructions.
Regardless, the jury found the military's actions appropriate considering the
circumstances).
18 1. Id.
182. See MacLean, supra note 177, at 4 (observing that Chevron requested, and the
Court rejected, US$485,000 in court fees from Nigeria, perhaps in an elort to
discourage future ATCA cases).
183. See Dana Wagner, The Chevron Precedent, PAMBAZUKA NEWS (June 30, 2010),
(recognizing that the Chevron
http://pambaztika.org/en/category/features/65583
court lurther reaflirmed that multinational companies can be liable as a third party, and
2011] A TCA AND INTERNATIONAL CORPORATE LIABILITY
1535
the same time, the case also showed corporations that if they
elect not to settle an ATCA case, the possibility remains that such
claims can be defeated at trial.'8 4 Chevron's counsel also
vocalized his concerns about the nature of ATCA litigation,
explaining that US courtrooms provided a forum for plaintiffs to
make claims that are exaggerated and harmful to a
corporation.3 5
Although Sinaltrainal v. Coca-Cola Company, filed in the
United States District Court for the Southern District of Florida
in the Eleventh Circuit, never made it to trial, the case is also
indicative of ATCA litigation in the circuit. 8 6 In 2001,
Sinaltrainal, a Colombian workers' union, filed claims against
Coca-Cola Company and its bottling subsidiaries alleging that
they collaborated with paramilitaries and the local police, to
systematically intimidate, detain, kidnap, torture, and murder
Colombian trade unionists.'8 7 Sinaltrainal brought four separate
claims, three of which the court considered together. 8 The
Southern District of Florida ultimately dismissed the claims
that such cases, which are likely to be settled outside of the courtroom, can also make it
to trial, demonstrating to "communities around the world ... that they have recourse to
legal mechanisms to bring corporations that violate their human rights to justice").
184. See Ecker, supra note 180 (quoting Chevron's General Counsel: "[w]e as a
company are certainly willing to contemplate settlement if the economics are right for
doing so. But that includes the importance of our reputation, which also has a concept
of justice embedded into it. We certainly don't want to pay people just because they run
into a courthouse and make some allegations").
185. See generally Michael Peel, Old Law Exhumed by Human Rights Fighters, FIN.
TIMES,
May
25,
2009,
http://www.ft.com/cms/s/0/3d93claO-4931- 11 de-9el900144feabdcO.html#axzzllzTiTmSb ("[T]he statute provides an easy platform for
claimants to make damaging allegations before a U.S. audience that often prove 'very
much overstated' when they are tested in court.").
186. See generally Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009).
187. See id. at 1257-58; see also john Pacenti, Ruling Helps Coke, ChiquitaFight Federal
Law Suits, BROWARD DAILY Bus. REV., Oct. 1, 2009, at Al (explaining that "the
allegations stem from four lawsuits claiming Coca-Cola bottlers Panamco and Bebidas
collaborated with paramilitary forces in what the Eleventh Circuit called 'the systematic
intimidation, kidnapping, detention, torture and murder of Colombian trade
unionists"'); Civil Procedure-PleadingRequirements-Eleventh Circuit Dismisses Alien Tort
Statute Claims Against Coca-Cola under lqbal's Plausibility Pleading Standard, 123 HARV. L.
REv. 580, 581 (2009) [hereinafter Pleading Requirements] (identifying the subsidiaries as
Bcbidas and Panamco Columbia, S.A); Regina A. Rauxloh, A Callfor the End of Impunity
for MultinationalCorporations,14 TEx. WESLEYAN L. REV. 297, 301 (2008) (explaining that
plaintiffs alleged that Coca-Cola had a relationship with violent paramilitary).
188. See Sinaltrainal,578 F.3d at 1258-60 (explaining the procedural history).
1536 FORDHAMINTERNATIONAL LAWJOURNAL
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against Coca-Cola USA and Coca-Cola Colombia in 2003 and the
remaining claims in 2006.189
Plaintiffs appealed to the Eleventh Circuit, which upheld the
dismissal of the suits against Coca-Cola. 9 0 The dismissal,
however, was not indicative of the court's standing on corporate
liability under the ATCA. The court explicitly stated that the
circuit recognized such liability pursuant to the ATCA.' 9 1 In fact,
the court dismissed the claims for a failure to satisfy pleading
standards under Bell Atlantic Corp. v. Twombly and Ashcroft v.
Iqbal.'9 Therefore, human rights lawyers were not discouraged by
the result, arguing that, as the claims were dismissed on a
technicality, the bottlers and Coca-Cola were not officially
exonerated for the events in Colombia.19 3 At the same time, a
demand for such pleading specificity may also be an obstacle for
human rights plaintiffs.194 Despite the dismissal, however, CocaCola was not left unscathed, suffering damage to its image and
lost contracts.'9 5 As in previous cases, concerned parties also
189. See id.; see also PleadingRequirements, supra note 187, at 581-82 (clarifying that
the lack of subject matter jurisdiction, and the terms of the bottling agreement that
Coca Cola had with its subsidiary contributed to the dismissal of the claims).
190. Sinaltrainal,578 F.3d at 1252; see also JOSEPH, supra note 89, at 143 (setting
forth that Sinaltrainalshows that multinational corporations are not necessarily liable for
the actions of their subsidiaries).
191. See Sinaltrainal,578 F.3d at 1263 ("In addition to private individual liability,
we have also recognized corporate defendants are subject to liability under the ATS and
may be liable for violations of the law of nations.").
192. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (establishing a
heightened pleading standard); Aschcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("[T]he
tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions."); see also Pacenti, supra note 187, at Al (explaining
that pursuant to Iqbal a judge may accept well-pled facts as true, but the court is not
obliged to accept the plaintiffs legal conclusion and can dismiss the complaint if the
court deems it implausible); PleadingRequirements, supra note 187, at 582-83 (explaining
that plaintils (lid not meet the plausibility requirement set forth in Twombly).
193. See Alison Frankel, Coke Wins Test Case of Alien Tort Laws, MIAMI DAILY BUS.
REV., Aug. 14, 2009, atA3 (contending that the case was dismissed on a technicality).
194. See PleadingRequirements, supranote 187, at 584 (clarifying that the plausibility
standard applied by the Sinaltrainalcourt may be an obstacle to ATCA claims in the
Eleventh Circuit).
195. See Drimmer, supra note 133, at A23 (explicating that ATCA litigation is not
just limited to traditional motion practice, but is accompanied by media and political
campaigns seeking to cause financial detriment to the companies or forcing sizeable
settlements); Hannah McGoldrick, U. Massachusetts Students Boycott Coca-Cola,UNIVER.SITY
WIRE (May 4, 2009, 11:51 PM) (stating that University students boycotted Coca-Cola
products served on campus in light of this case); KOEBELE, supra note 13, at 303
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
1537
voiced strong opposition to the litigation, pointing to the
detrimental effect it has on the United States' foreign
relations. 96
The case law and rulings produced by the three circuits in
the area of ATCA corporate liability have created a significant
circuit split. With the Kiobel decision, the Second Circuit held
that it no longer recognizes corporate liability. The Ninth and
Eleventh Circuits have not made such a definitive ruling. Instead,
those circuits have seen ATCA cases go to trial, and the courts
have recognized the existence of such liability. In light of the
above, the landscape of corporate ATCA liability in the United
States is varied.
III. THE SECOND CIRCUIT IS CORRECT: WHY
MULTINATIONAL CORPORATIONS SHOULD NOT BE LIABLE
UNDER THE A TCA
While the human rights abuses alleged in corporate ATCA
actions are undeniably atrocious and mandate remedy and
recourse, it is questionable whether the ATCA is the appropriate
vehicle to address these concerns. The newly-created circuit split,
with two circuits allowing such claims and one ruling against
them, only emphasizes the importance of this question.197 Part III
analyzes the implications of this division, stressing its
international repercussions and advocating that the Second
Circuit's Kiobel holding be uniformly adopted. Section A argues
that continued ATCA corporate litigation threatens to result in
American judicial imperialism. Section B contends that ATCA
litigation poses a real economic threat not only to multinational
corporations, but also to developing countries, negatively
impacting US international relations. Finally, Section C advocates
for the US Supreme Court to review, and definitively determine
(recognizing the value of media coverage and boycott if success in an ATCA claim seems
unlikely).
196. See Brief for The National Foreign Trade Council, et al., as Amici Curiae
Supporting Defendants, Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (2009) (No. 0103208), 2008 WL 2805225 (positing that ATCA litigation harms US external policy for
four reasons: 1) casting the limelight on a US ally; 2) risking that discovery may
embarrass the implicated nation; 3) threatening comity; 4) causing friction in US
relations).
197. See supra Part II.A. and 11.11. (explaining the split between the Second, Ninth,
and Eleventh Circuits).
1538 FORDHAMINTERNATIONALLAWJOURNAL
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that corporate liability does not exist under the ATCA in light of
the conflicting standards among the circuits.
A. The Threat of Misinterpretingthe ATCA
The Kiobel court correctly recognized that the ATCA was
enacted in large part to preserve international affairs.'19 In that
vein, the court asserted that if US courts, on their own accord,
identified corporate liability as a new standard of customary law
they would risk offending other countries and thereby flout the
ATCA's original purpose.'9 9 This holding is in line with the first
Congress' intention to observe international standards and
demonstrate respect for the international community. 200
Further, the fact that the United States, the governments of
other sovereign states, and concerned entities have repeatedly
submitted amicus curiae briefs expressing their objections to
ATCA litigation, underscores the position that the current
incarnation of the ATCA contradicts its original purpose.2 0
Arguments raised in opposition to the ATCA have included
infringement of sovereign immunity and interference with
another country's foreign relations. 202 The founders did not
203
intend for the federal courts to meddle in international affairs.
Instead they charged the courts with saving the country from
198. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d III, 140-41 (2d Cir. 2010)
("Unilaterally recognizing new norms of customary international law-that is, norms
that have not been universally accepted by the rest of civilized world-would potentially
create friction in our relations with foreign nations and, therefore, would contravene
the international comity the statute was enacted to promote."); see supra note 138 and
accompanying text (detailing the Kiobel Court's perspective on ATCA history).
199. See supra notes 138, 145, 148 and accompanying text (pointing out that the
Kiobel Court evaluated the ATCA in light of the framers' intentions to preserve
international comity and respect the established norms of international law).
200. See supra note 151 and accompanying text (setting forth that the ATCA was
first meant to remedy situations that threatened international relations); see also supra
Part l.A. (discussing the beginnings of the ATCA and the first Congress' intention to
abide by international standards).
201. See supra notes 60, 81, 85-86, 88-89, 132-133, 196 and accompanying text
(identifying a series of briefs filed on behalf of institutions and governments opposing
corporate ATCA litigation).
202. See supra note 67, 74, 116, 133 and accompanying text (explaining concerns
surrounding the ATCA corporate litigation).
203. See generally supra Part I.A. (describing the first Congress' prerogative to
establish itself in the international community and exhibit the new nation's intent to
abide by international norms).
2011] A TCA AND INTERNATIONAL CORPORATE LIABILITY
1539
embarrassment and preserving relationships. 2 0 4 Allowing US
courts to pass judgment on the policies of other countries by
adjudicating these claims does not satisfy that goal, and may lead
to international conflict. For example, other countries may
understandably oppose multinational corporations being hauled
into US courtrooms. Similarly, US judicial interference in
another country's economy or governance is risky and could lead
to international repercussions; especially since US courts are
hesitant to consider the concerns of other nations.115 Therefore,
it is not surprising that multinational corporations and other
countries alike welcomed the Second Circuit's Kiobel holding. 206
The Second Circuit's approach protects international relations
and respects the intention of the ATCA.
In Sosa the US Supreme Court highlighted the role of the
executive branch, and asserted that deference should be
accorded to its viewpoints and opinions in regard to foreign
affairs.2 07 The executive branch has repeatedly advanced the
argument that ATCA litigation will hamper US international
relations.2 08 In the face of international and governmental
backlash, the Second Circuit's ruling confronts this issue and
offers an obviously effective remedy: disallow corporate liability
under the ATCA.
The United States must proceed with caution when facing
the controversy surrounding the ATCA. The United States is
assuming the right to judge and punish international entities. At
the same time, however, the United States is reluctant to allow
204. See supra notes 17-28 and accompanying text (positing that the first Congress
granted the federal courts the right to adjudicate claims involving non-US citizens in the
aftermath of two international incidents involving diplomats that highlighted the
importance of federal control over sensitive incidents).
205. See generally supra notes 117-19, 132-33, 196 and accompanying text
(demonstrating that although the international community voiced their opposition to
the ATCA it was not always entertained by courts).
206. See supra note 157 and accompanying text (describing that the international
community welcomed the court's decision).
207. Sosa v. Alvarez-Machain, 542 U.S. 761 (2004) (emphasizing that the "serious
weight" of the "executive branch's view of the case's impact on foreign policy" and the
need "to ensure that ATS litigation does not undermine the very harmony it was
intended to promote").
208. See supra notes 3, 86-89, 117 and accompanying text (explaining the US
Executive branch's reactions to ATCA litigation).
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other nations to exercise similar power over themselves. 209 This
double standard highlights yet another source for international
conflict in the world of ATCA litigation. Therefore, the actions of
the US courts are bordering on a form of American judicial
imperialism. 10 This is not in line with the aims of the first
Congress, which was highly concerned with the integration of
and deference to international law.211
B. The A TCA: An Economic Nightmare
"Ifyou're a business and you haven't been sued under this law,
don't worry, you will be. "212
Corporate liability under the ATCA also threatens to
negatively impact economic development and investment by
multinational corporations.213 Scholars have identified various
nightmare scenarios, all ending with multinational corporations
pulling out of developing countries to protect themselves from
potential ATCA liability.2 14 Comparing the standards set forth by
the Second, Ninth, and Eleventh Circuits, what actually qualifies
as aiding and abetting is ambiguous. 2 15 It is unclear if a
corporation can be held liable for the offenses committed by a
local government or its agents, because the available standards
209. See supra note 28 and accompanying text (setting forth that the US has failed
to allow the international community to adjudicate United States corporate human
rights misdeeds); see also Periodic Review, supra note 3, at 6 (mentioning that the US has
not complied with international human rights regulations in the face of its own
corporate human rights violations).
210. See HUFBAUER & MITROKOSTAS, supra note 3, at 8-9 (warning that if US
federal courts continue to adjudicate corporate ATCA matters, their actions will likely be
classified as judicial imperialism).
211. See supra note 18 (discussing the Congress' intentions behind the enactment
of the ATCA).
212. WILLET, SUGGS & PENNOTTI, supra note 37, at 35.
213. See KOEBELE, supra note 13 (furthering that multinational corporations may
hesitate to conduct business or invest in developing countries with questionable human
right records); see also supra notes 116-19, 133-36 (discussing implications for economic
activities by corporations charged with ATCA liability).
214. See Hutchens, supra note 113, at 656 (claiming that the ATCA is a "monster"
that could compel multinationals to cease economic activity in countries with shaky
human rights records); HUFBAUER & MITROKOSTAS, supra note 3, at 1-2 (describing
continued ATCA litigation as an economic nightmare scenario).
215. See supra Part II (recognizing the different standards imposed by the Second,
Ninth, and Eleventh Circuits concerning aiding and abetting liability).
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
1541
are not definitive.2 16 If a multinational company decides not to
invest in a developing country out of concern that they may be
hauled into court, and forced to litigate or settle claims on
account of their mere presence in a nation, such consequences
will obviously have an impact on the world economy.2 17 A
questionable American statute should not be dragging
multinational corporations into US courts.
C. The Time Is Ripe for US Supreme Court Review
This Note advocates that the Supreme Court rule on this
circuit split, and adopt the Second Circuit's interpretation of the
ATCA. An undesirable consequence of this circuit split is forum
shopping by human rights plaintiffs, as they are free to file their
suit in the circuit whose laws allow them to most effectively meet
their objectives.2 18 The nature of forum shopping makes ATCA
litigation unpredictable, inconsistent, and burdensome for
corporate defendants. Human rights plaintiffs, who are non-US
citizens, alleging serious human rights abuses and claiming
millions of US dollars in damages against multinational
corporations, should not be able to pick and choose a forum at
their leisure. The Supreme Court, or in the alternative, Congress,
must institute a uniform interpretation of the ATCA and clarify
the meaning, application and continuing purpose of this
powerful statute.
Additionally, as the "plaintiff friendly" American tort system
arguably entices human rights plaintiffs to file matters in the
country, the Supreme Court must clearly define what factors are
necessary to maintain a claim.2 19 Multinational corporations have
deep pockets and American juries the power to award substantial
damages, especially when confronted with human rights
216. See supra Part II (positing that the Second Circuit no longer recognizes
liability, and that although the Ninth and Eleventh Circuit do, they have not developed a
clear formula for success).
217. See supra notes 116-19, 133-36 (acknowledging that the threat of ATCA
litigation may cause businesses to limit or cease investment in developing nations); see
also Cowman, supra note 3 (emphasizing that the ATCA is punishing those companies
who may be able to effect positive change in the countries they invest in).
218. See Maleske, supra note 2, at 6 (describing that human rights plaintiffs as "free
floating").
219. See supra notes 90-97 and accompanying text (pointing to the procedural
advantages of the US court adversarial system).
1542 FORDHAMINTERNATIONAL LAWJOURNAL
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abuses.2o Moreover, ATCA litigation has the potential to be
extremely lucrative for plaintiffs' attorneys. When considering
these factors, it is understandable that multinational corporations
are concerned about facing trial in the United States.
Multinational corporations settle claims, forgoing the chance to
prove their innocence, in order to avoid public criticism and
high expenditures.2 "
If multinational corporations are guilty of human rights
abuses, they deserve punishment. But, in light of the above
considerations, the Second Circuit rightly determined that the
ATCA is not the appropriate instrument to address these
concerns, without offending international law, the international
community, or potentially mutating into a "form of global
'ambulance chasing."' 22 2
CONCLUSION
The belief that an end to corporate ATCA liability will result
in corporate human rights violations going unaddressed is
misplaced. Rather, the global community must select a mutually
acceptable forum. While this task is not simple to accomplish, the
Second Circuit has come closer to compelling the international
community to do so, and the United States has come closer to
backing such a measure by ruling that corporate liability is not
available under ATCA. The Second Circuit properly recognized
that as corporate liability does not exist under customary
international law, it is not actionable under the ATCA. This
decision carries additional importance in light of the impact that
ATCA litigation has had on US external relations. The United
States and other countries have repeatedly submitted their
objections to ATCA litigation to the courts. The international
community has expressed criticism, arguing that the United
States is inching closer to judicial imperialism when it adjudicates
220. See supra notes 91-98 and accompanying text (recognizing that the financial
capabilities of corporations make them attractive defendants).
221. See supra note 147 and accompanying text (identilying that the Second Circuit
recognized the threat of corporate liability extorting settlements); see also supra note 195
and accompanying text (setting forth the public relations consequences faced by CocaCola).
222. JOSEPH, supra note 89, at 17.
2011] ATCA AND INTERNATIONAL CORPORATE LIABILITY
1543
claims for wrongs that did not occur on American soil, or did not
involve US corporations.
The United States should not be permitted to punish a
multinational corporation with "American style" damages, when
the method of establishing a corporation's guilt is questionable.
Multinational corporations cannot completely cease investment
in developing countries with questionable human rights
practices. Such a solution is unrealistic. Instead, a more concrete
formula for corporate liability must be established, one that is
agreed upon by a majority of the international community.2 23 In
light of the recent ATCA cases, the Supreme Court must step in
and decide what should remain of ATCA corporate liability, and,
should anything remain, what definitive set of facts are required
for recourse.
223. SeeJohn H. Knox, The Human Rights Council Endorses "GuidingPrinciples"for
Corporations, 15 AM. SOC'Y INT'L L. 01 (2011), http://www. asil.org/insighLs I10801.cfm
(explaining that on June 16, 2011 the United Nations Human Rights Counsel endorsed
Guiding Principles on Business and Human Rights, indicating that the international
community is capable of establishing mutually agreeable standards for multinational
regulation).